304 Mass. 181 | Mass. | 1939
These are petitions for writs of mandamus. The petitioner seeks in the first case the issuance of a writ commanding the respondent, who is the Secretary of the
The cases were tried together before a single justice of this court on agreed facts. The petitioner, on January 7, 1937, was nominated by the Governor and confirmed by the Council as clerk of the First District Court of Southern Worcester in place of the respondent Cassidy. While holding the office of clerk of the District Court, Cassidy, on November 3, 1936, was elected to the office of county commissioner of the county of Worcester. On January 6, 1937, he took the oath of office as county commissioner and began the performance of the duties of that office. He did not resign or relinquish his office as clerk of the District Court and has continued to perform its duties.
The single justice, on June 7, 1937, ruled that the two offices of clerk of the District Court and of county commissioner were not inherently incompatible and that there was no vacancy in the office of the clerk of the District Court to which the petitioner could have been appointed, and ordered judgment for the respondent in each case. The petitioner filed claims of exceptions to these rulings and to the orders for judgment. A consolidated bill of exceptions was allowed on August 3, 1937.
After the allowance of the bill of exceptions by the single justice and before the cases came on to be heard in this court, the respondents, in October, 1937, filed motions to dismiss the petitions, alleging that the cases had become moot for the reason that the petitioner had reached the age of seventy on July 29, 1937, and could not remain in the service of the county as clerk of the District Court even if he should prevail in these cases. A stipulation signed by counsel of all the parties, later filed in this court, recited that the petitioner had reached the age of seventy on July .29, 1937.
Soon after the decision in the case of O’Connell v. Retirement Board of Boston, supra, the Legislature made substantial changes in the definition of the word "employees” as used in the county retirement statutes. St. 1926, c. 378, § 1. It defined the word as meaning "any persons permanently and regularly employed in the direct service of the county whose sole or principal employment is in such service . . . and also any officials or public officers whose compensation is paid by the county, whether employed or appointed for a stated term or otherwise, except, in counties other than Worcester, an official or public officer elected by the people.” It also excepted from the definition teachers employed in day schools conducted by trustees of county agricultural schools. (See G. L. c. 74, §§ 25-37.) The statute appeared in the same form in G. L. (Ter. Ed.) c. 32, § 20. It is clear that public officers were by this statute included within the definition of the word "employees.”
Any doubt that a clerk of a district court was subject to the provisions of the retirement statutes was removed by the passage of St. 1936, c. 282, § 1, amending G. L. (Ter. Ed.) c. 218, § 8, which provided that such a clerk should hold office "subject ... to retirement under the provisions of any applicable general or special law relative to
If it be assumed, as contended by the petitioner, .that the office of clerk of a district court and the office of county commissioner are incompatible, the acceptance by the respondent Cassidy of the office of county commissioner would vacate the office of clerk of the District Court. Commonwealth v. Hawkes, 123 Mass. 525, 530. Howard v. Harrington, 114 Maine, 443. Cotton v. Phillips, 56 N. H. 220. If it be further assumed that the petitioner became entitled to hold the office of clerk of the District Court on January 7, 1937, inasmuch as he was an “employee” of the county within the meaning of the applicable statute, he could not “remain in the service of the county . . . after reaching age seventy.” G. L. (Ter. Ed.) c. 32, § 21 (3), as contained in St. 1936, c. 400, § 1. He reached that age on July 29, 1937.
The allegations in the two petitions are substantially the same. In each it is alleged that the respondent Cassidy is holding incompatible offices; that by accepting the office of county commissioner on January 6, 1937, he impliedly resigned from the office of clerk of the District Court; that on January 7, 1937, the petitioner was duly appointed and confirmed as such clerk and was sworn in and qualified, and that on April 14, 1937, he duly filed a bond as required by the statutes. The allegations of the two petitions do not indicate any other ultimate objective of the petitioner than his establishment in the office of clerk of the District Court. In the case in which the Secretary of the Commonwealth is named- as respondent, the petitioner prays for the attestation and delivery to him of his commission. If this prayer was granted it would not be of avail in establishing him in the office sought. No other present or future detriment to the petitioner because he does not hold the commission is alleged. See Lowry v. Commissioner of Agriculture, 302 Mass. 111, 121. So far as the present cases are concerned, the question of the attestation and delivery of the commission is moot. The possibility that such a question may arise at some other time in some other proceeding does
A suggestion of the death of the petitioner on September 22, 1939, has been filed in each case by his administratrix. She has also filed motions that she be substituted as party petitioner in each case. Those motions are allowed. She, however, has no greater rights than her intestate had, and the motions to dismiss filed by the respondents are allowed, and in each case the petition is dismissed.
So ordered.