Gaw v. Ashley

Knowlton, O. J. This is a petition for a writ of mandamus to compel the respondent Ashley, as mayor of the city of New Bedford, to restore the petitioners to office as members of the board of health of that city, and to restrain the other two respondents from interfering with the petitioners in the performance of their duties as members of this board. The petitioners, after due hearing, were removed from office by the mayor, for a cause which he stated as follows: “ Misuse of authority in the matter of an appointment of a subordinate and conduct in regard thereto prejudicial to the welfare of the public service and inconsistent with and contrary to public policy, — in that as members of said board you voted for and caused to be appointed as quarantine physician, said Manuel V. Sylvia, then a member of said board, in which position when so appointed the said Sylvia, under the city ordinances, was subject [176] to the orders and direction of said board of health and eligible to receive compensation for his services, and in addition might be permitted to charge to the sick under his care, for medicines and medical attendance, such sums as the board of health might approve, said board of health at the time of said appointment and thereafterwards until this date being all the while composed of said Sylvia, Gaw and Stetson, and no other persons.” The quarantine physician is an officer who, by the terms of the ordinance, is to hold office during the pleasure of the board of health, and in the performance of his duties he is to be largely subject to their direction. Besides receiving a regular compensation from the city, he may charge the sick for medicine and medical attendance, in extraordinary cases, such sums as the board of health may approve. The first, question is whether, under the ordinance, the board of health lawfully and properly could elect one of themselves to this office. We are of opinion that they could not. The ordinance contemplates the existence of a relation between the physician and the board which requires that he shall not be a member of it. He is to make frequent reports to the board, and from time to time is to make recommendations. His charges to the sick are to be only such as the board approves. His personal interest in these charges is inconsistent with the proper performance of his duty, as a member of the board of health,' to fix their amount, in the interest of the public and for the protection of his patients. Under the R. L. c. 210, § 9, a member of either branch of the city council, or of a municipal board of a city, is not permitted to be personally interested directly or indirectly in a contract made by the city council, or either branch thereof; or by such board, or by authority derived therefrom, in which the city is an interested party. In R. L. c. 26, § 36, it is provided that “No member of the city council shall, during the term for which he was chosen, ... be eligible to any office the salary of which is payable by the city.” Assuming that neither of these statutes applies directly to the present case, yet the principle on which they are founded applies to this election by the board of health of one of their salaried members to an office for which he was to receive, another salary, and in extraordinary. [177] cases to charge for his services, upon implied contracts, such sums as he himself and his associates, in their supervisory capacity, should approve. The provision of the It. L. c. 75, § 10, that the clerk of the board shall not be a member of it, does not imply that the physician and all other agents and assistants may be chosen from the members. In such a board there is no such apparent inconsistency between the duties of a recording officer and an ordinary member as necessarily to preclude the choice of a clerk from the members of the board. Were it not for this provision, such a choice might be made, as it may be made from the board of overseers of the poor. See R. L. c. 25, § 71. But the duties and relations of the quarantine physician in the present case are inconsistent with membership in the board. It follows that we cannot set aside the action of the mayor. It cannot be said as matter of law that his action was without sufficient cause. It is only when there is an arbitrary exercise of power, and the cause alleged for the removal is frivolous or unreasonable and in law insufficient, that we can revise such official action. Ayers v. Hatch, 175 Mass. 489, 492. Ham v. Boston Board of Police, 142 Mass. 90, 95. Matter of Guden, 71 App. Div. (N. Y.) 422. People v. Thompson, 94 N. Y. 451. People v. Mayor of New York, 19 Hun, 441, 448. State v. Common Council of Buluth, 53 Minn. 238. The fact that a similar choice of a quarantine physician had sometimes been made in former years does not enable us to say that the mayor’s action was unauthorized. He well might have considered it in judging whether this recent act of the petitioners called for their removal. The cause which he gave being legally sufficient, we cannot say that there was error of law in his finding. Ayers v. Hatch, 175 Mass. 489, 492. Hogan v. Collins, 183 Mass. 43, 46. Petition dismissed.