Opinion
June 22, 1916.
September 8, 1916.
Present: RUGG, C.J., LORING, BRALEY, De COURCY, CARROLL, JJ.
Under R.L.c. 160, §§ 11, 36; c. 161, § 5, an assistant clerk of a district court has authority to receive a complaint addressed to the court and to administer the oath to the complainant.
COMPLAINT, received and sworn to in the District Court of Southern Essex on May 24, 1916, for the alleged violation of a regulation of the board of health of the city of Lynn.
On appeal to the Superior Court the defendant was tried before McLaughlin, J. The defendant renewed a motion, which had been denied in the district court, that the complaint be quashed "for the reason that it was received by and sworn to before the assistant clerk of said court, at a time when said court was not in session, and said assistant clerk had no warrant or authority in law so to receive said complaint or to take the oath of the complainant thereto."
The judge denied the motion, and upon the defendant's plea of guilty imposed a fine of $5. At the request of the defendant the judge stayed sentence under R.L.c. 220, § 3, and reported the case for determination by this court upon the question raised by the motion to quash.
The case was submitted on briefs.
H.R. Hurley, for the defendant.
L.S. Cox, District Attorney, for the Commonwealth.
The only question presented on this record is whether an assistant clerk of a district court has authority to receive a complaint addressed to the court and to administer the oath thereon.
He has such authority. R.L.c. 161, § 5. Commonwealth v. Wetherbee, 153 Mass. 159. He holds an office created by law. R.L.c. 160, §§ 11, 36.
Sentence to stand.