252 Mass. 213 | Mass. | 1925
The defendant Kimball, mayor of the city of Malden, acting under G. L. c. 32, §§ 56-60, as amended by St. 1923, c. 386, retired the defendant Bagge, inspector of buildings, on half pay, which imposed upon the taxable inhabitants an annual expenditure during his life of $1,100 payable in monthly installments. If the statute is unconstitutional, as the plaintiffs contend, all other questions raised by the amended petition, and the demurrer of the defendants, on which the case is before us, need not be considered.
The bill contains no allegation that Bagge was not a veteran of the Spanish War within the definition of § 56.
The pertinent provisions of the statute in question are contained in § 57 as amended by St. 1923, c. 386. It reads: "A veteran who has been in the service of the Commonwealth, or of any county, city, town or district thereof, for a total period of ten years, may, upon petition to the retiring authority, be retired, in the discretion of said authority, from active service, at one half the regular rate of compensation paid to him at the time of retirement, and payable from the same source, and if he is found by said authority to have become incapacitated for active service; provided, that he has a total income, from all sources, exclusive of such retirement allowance and any sum received from the government of the
It not being alleged that Bagge had not served for a total period of ten years, or had not asked for retirement, it may be assumed that those conditions are not questioned. The plaintiffs, while not alleging that the mayor acted fraudulently or corruptly, do charge that in retiring Bagge he abused his discretion. But the certificate of the physician who examined Bagge, which the mayor transmitted to the city council as part of his order, warranted the exercise of his discretion as to Bagge’s physical condition, and this allegation, which is a conclusion of law, is not admitted by the demurrer. It is unsupported by the record.
The action taken by the mayor also was sufficient under § 60 to show his acceptance of the statute to which he makes specific reference in the order of transmittal. It may be said in this connection that the mayor acts under the statute in the exercise of his executive and administrative functions. In no sense is he constituted a tribunal clothed with judicial powers, and the remedy of the plaintiffs, if the order was illegal, is under G. L. c. 40, § 53. Rollins v. Salem, 251 Mass. 468.
It is further alleged that Bagge was not, as matter of fact, incapacitated, which issue the plaintiffs are entitled to contest.
But, even if the original bill with this exception failed to state a case for relief, the allegations in the amendment are, that Bagge, having been appointed annually for one year by the mayor and board of aldermen under the revised ordinances of the city, was a public officer, and that when the mayor issued the order, his income was in excess of $500. The demurrer admits, and we assume, that Bagge was a public officer and not an employee or agent of the city. Goldstein v. Conner, 212 Mass. 57. Kilgour v. Gratto, 224 Mass. 78. G. L. c. 143, §§ 6, 14, 48, 61. The distinction between a public office and an employment is pointed out with full citation of cases in Attorney General v. Tillinghast,
The amount of Bagge’s income, as well as the question of his physical capacity, was, however, to be determined by the mayor. It was a condition precedent to his retirement even if he was otherwise eligible. Under the wording of the order, the mayor does not appear to have passed expressly upon the question of income. But if, without deciding, it is assumed from his final action that he must have done so, the plaintiffs have the right to show, if they can, that Bagge also failed to bring himself within this requirement.
The result is, that the interlocutory decree sustaining the demurrer, and the final decree dismissing the bill, are reversed, and the case is to stand for further proceedings not inconsistent with this opinion.
Ordered accordingly.