Attorney General v. Donahue

169 Mass. 18 | Mass. | 1897

Holmes, J.

It is not necessary to consider whether the appointments were valid or not, since we are of opinion that, if they were valid, the defendants were removed from office effectually by the two thirds yea and nay vote of the city council. By St. 1896, c. 415, § 2, the power of the city council to remove was separated from the power to appoint, which, by construction of the same act, was held to be given to the mayor. Attorney General v. Varnum, 167 Mass. 477. There is no indication that the power to remove, given to the city council, was part of a scheme of which the mayor’s power to appoint was another essential part, in such a sense that if the latter fell the former would fall with it. As the power of the city council to remove was neither incident to the power of appointment nor dependent upon its continuing unchanged, it follows that it was not taken away by the restoration of the power of appointment to the city council by St. 1897, c. 95.

The power given by St. 1896, c. 415, § 2, is a power to remove without hearing, and without assigning a cause. First, the statute gives the mayor a power to remove “ for such cause as he shall deem sufficient,” which is a power to remove without hearing ; O’Dowd v. Boston, 149 Mass. 443; but his order is not to take effect until approved by the city council. The section then goes on : “ The city council may, by a two thirds vote in each branch, voting by yeas and nays, remove any of said -officers without the consent of the mayor.” This gives the city council the same right as the mayor to remove without hearing; and whereas the mayor is required to set forth the reasons for removal in his order, and is forbidden to remove upon partisan grounds, no such requirement or prohibition is imposed upon the city council, where both would be more difficult of application. We are of opinion that the city council was not bound to set forth its reasons in its order, and that evidence that it acted on partisan grounds was inadmissible, and properly was rejected. Of course, our decision goes wholly on the construction of the particular statute, and not on any general view as to the powers of such bodies when the statutes are silent.

What we have said disposes of the case of Donahue, where the order of removal originated in the board of aldermen. In the other two cases, the order originated in the common council, and, by a rule of that board, any joint order originating there, except an order for a joint convention, “ shall be copied, and shall, previous to the hour for calling the meeting to order, be posted in some prominent place in the council chamber, where it may 'be open to the inspection of the members.” This was not done, and an objection being taken when the first of the two orders was introduced, the council took a recess, and the orders were posted in the hallway outside the council chamber, upon a bulletin board, before any action upon them. After the recess the objection was raised again in the case of Donahue, to which, as we have said, it was not applicable, and nothing further was done with reference to the others. Taking this into account, and considering the doubt whether the order as to copying and posting should be regarded as more than directory, in view of its nature, we are of opinion that this objection also fails.

Judgment of ouster.