Farwell v. City of Boston

192 Mass. 15 | Mass. | 1906

Lathrop, J.

This court having decided in Farwell v. Boston, 180 Mass. 433, that the petitioner was not entitled to’compensation under the St. of 1897, c. 519, § 4, by reason of his access to a railroad being cut off, the Legislature passed the St. of 1903, c. 392, changing the rule of law laid down by the court, but making the act take effect upon its acceptance by the city council of the city of Boston.

The question of the constitutionality of the act is a delicate one, as judgment had been entered on the petition for damages originally filed by the petitioner; but it is unnecessary to consider this question.

The remaining question is whether the act was legally accepted by the city council of the city of Boston. The facts bearing upon this question are as follows :

On Monday, June 29, 1903, the board of aldermen of the city of Boston voted to accept the act; and on July 2, 1903, the common council of that city voted that the act be accepted in concurrence. On Friday, July 3, being the next day, the vote of acceptance duly certified was taken by the assistant city clerk to the office of the mayor, and there delivered into the hands of a clerk in the office, who indorsed upon it “ Received July 3, 1903.” The mayor was not then in his office, and did not see the act and vote until Monday, July 6, 1903.

On July 14, 1903, the mayor sent to the board of aldermen a communication purporting to be a veto of the vote. This communication was laid on the table in the board of aldermen, and on January 2, 1904, was taken from the table and referred to the committee on public improvements, which committee on the same day reported “ that in the opinion of the committee this veto was not returned to the board within the time required by law and recommending that no further action be taken.” This report was accepted, and reconsideration refused.

The charter of the city of Boston, St. 1854, c. 448, in § 47, requires an ordinance, order, resolution or vote to be presented to the mayor, and provides that if an ordinance, order, resolution or vote “ shall not be returned by the mayor within ten days after it shall have been presented, the same shall be in. force.” The case of the petitioner rests upon the assumption that the mayor did not send in his veto within ten days after the vote was presented to him, as required by the charter. This depends upon the meaning of the word “ presented.” We are of opinion that leaving a vote with a clerk in the mayor’s office in the absence of the mayor is not a presentation to him within the meaning of the charter.

This question arose in 1868, in regard to a similar provision in the Constitution of the Commonwealth, c. 1, § 1, art. 2, which reads as follows: “ And in order to prevent unnecessary delays, if any bill or resolve shall not be returned by the governor within five days after it shall have been presented, the same shall have the force of a law.” The bill in that case was sent on February 10 to the secretary of the Commonwealth with whom all bills had been left for presentation to the Governor for twenty years before. The Governor was absent from the Commonwealth, and returned on February 14. On February 19 he returned the bill to the House of Representatives with his objections thereto. The House of Representatives requested the opinion of the justices of this court as to whether the bill was a law. The opinion of the justices was to the effect that the bill had not been presented to the Governor until his return. It was said: “ As the duty of revisal by the governor is a personal duty, with which he alone is intrusted when his chair is not vacant, it is necessary that the bill should be laid before him personally.” Opinion of the Justices, 99 Mass. 636.

We are of opinion that this reasoning is sound, and that it applies to the case before us. The veto of the mayor was made in due season, and the St. of 1903, c. 392, not having been accepted, the petition under the act is of no effect.

Petition dismissed.