The city of Waltham is governed by a Plan B charter, under which it has a mayor (G. L. [Ter. Ed.] c. 43, § 58) and eleven councillors (§ 59). By § 60, with certain immaterial exceptions, heads of departments are *41 “appointed by the mayor, subject to confirmation by the city council.” The parties assume that the collector and treasurer of the city is the head of a department.
On January 22, 1951, the mayor appointed the petitioner Clark as collector and treasurer of the city. On February 12, 1951, the question of confirmation came up at a meeting, at which ten of the eleven councillors were present. Four councillors voted in favor of confirmation, one against it, and five did not vote. The president ruled that the appointment of the petitioner was not confirmed, and the vote was recorded accordingly.
Upon a petition for a writ of certiorari, the facts appeared upon the return of the respondents. The judge ruled that upon the facts the appointment of the petitioner was confirmed, and quashed the record to the contrary. The respondents appealed.
If the merits of the confirmation were properly before us, it would be hard to say that the action of the judge was error. The unbroken current of authority in this Commonwealth leads to the conclusion that he was right. “In the absence of statutory restriction the general rule is that a majority of a council or board is a quorum and a majority of the quorum can act.”
Merrill
v.
Lowell,
The difficulty with affirming the action of the judge lies in the fact that a writ of certiorari “lies only to correct the errors and restrain the excesses of jurisdiction of inferior courts or officers acting judicially.”
Locke
v.
Selectmen of Lexington,
Petition for writ of certiorari dismissed.