211 Mass. 165 | Mass. | 1912
The point to be decided is the validity of an order passed by each branch of the city council of Cambridge on June 7 and 8,1910, respectively, laying out a street. The city charter required that it be approved or vetoed by the mayor within ten days after it was presented to him. St. 1891, c. 364, § 11. The mayor was absent from his office continuously from May 6 to July 6, by reason of illness, and was unable to perform his duties. Under R. L. c. 26, §§ 29, 30, the president of the board of aider-men became “acting mayor,” and possessed “the powers of mayor only in matters not admitting of delay.” The “acting mayor” approved the order on June 10, and it was never presented to nor approved by the mayor.
It has been decided that the time given to the executive officer for deliberating whether he shall approve or disapprove an act of a legislative body does not begin to run until the legislative act has come to him in fact, and that no constructive or implied action, falling short of a physical putting before him, suffices. Farwell v. Boston, 192 Mass. 15. See Opinion of the Justices, 99 Mass. 636, and Galligan v. Leonard, 204 Mass. 202.
These decisions, together with the express words of the statute and the inherent importance of the acts to be done, indicate the significance attached to the performance of official executive duties by the person elected by the people, rather than by a substitute designated in this instance in another way. The case would be quite different if the statute required the order to be presented to the mayor within a definite time after it was passed by the city council.
The statute makes no provision for the ascertainment of “matters not admitting of delay.” Therefore, it must be determined according to the usual course of judicial procedure as each case arises. The powers of the acting mayor are expressly limited to such matters as do not admit of delay. While this language should not be given a narrow or refined interpretation and should be construed in view of the practical necessities of municipal administration, yet it should be given its natural force and meaning in the connection in which it is found. The words are both plain and emphatic. They express a definite conception of a necessity
Cases might arise where it would be apparent as matter of law upon the face of the papers that the approval of the order was a matter “not admitting of delay.” Such an inference might be drawn respecting a warrant for an election or an appropriation of money to be used for a Fourth of July celebration or a corporate anniversary, or like orders where time appears to be of the essence of the subject. Appropriations necessary for immediate payment of fixed charges of various municipal departments would come within this rule. The nature of the order might stamp it as an emergency measure requiring instant attention. Impending disaster, threatened disorder, public pestilence, devastation by flood or fire illustrate the range of subjects of this character. The lay-, out of a public way, although based upon an adjudication that common necessity and convenience require it, usually does not fall within any of these classes. While it is conceivable that an exigency might demand it, there is nothing to indicate that in the case at bar. The city council might vote that any particular order was of a nature not admitting of delay in executive determination as to its wisdom. While this would not be conclusive, in most instances it would be strongly persuasive of the existence of pressing need. Universal acquiescence by public officers charged with the performance of official duties coupled with the acquirement of rights in reliance upon the validity of the act might create a presumption in favor of the existence of the pressing necessity. Burrage v. County of Bristol, 210 Mass. 299. Instances may arise when the delay of public business required for awaiting the mayor would be so great as to be unreasonable and to create a situation calling for action by the acting mayor. These would be likely to occur in the ordinary conduct of the administrative affairs of the city far more frequently than in the approval of acts of its legislative body.
There is force in the argument that the question whether a
The case at bar comes within none of these principles. There is nothing in the record to indicate that the health of the mayor on June 10 was such that he was not reasonably expected to resume his duties in the near, future. In fact, he did return to his public work within four weeks. For aught that appears, the order might well have waited this length of time without detriment to the public welfare. It cannot be said upon this record that it was a matter “not admitting of delay.”
This is not an error so technical or insubstantial as not to warrant issuance of the writ of certiorari. Exercise of the power of eminent domain is a governmental function of importance, both to the landowner whose property is taken and the public whose money must pay for it. In this instance the decision of the designated public officer was wanting. There was a failure to comply with an essential provision of the statute which involved the application of sound business judgment and executive discretion upon a matter affecting both public and private interests. It may be that a different result would have been reached if the statute had been followed. Bowditch v. Boston, 168 Mass. 239, 243. Warren v. Street Commissioners, 181 Mass. 6.
Writ of certiorari to issue.