305 Mass. 455 | Mass. | 1940
This is a petition for a writ of mandamus to try the title of the petitioner to the office of supervisor of old age assistance in the city of Newburyport, which is
St. 1936, c. 436, struck out G. L. (Ter. Ed.) c. 118A, and substituted a new chapter bearing the same number. Section 2 of the new chapter provided that “each [local] board of public welfare shall, for the purpose of granting adequate assistance and service to . . . aged persons, establish a division thereof to be designated as the bureau of old age assistance:” On September 1, 1936, the department of public welfare of the Commonwealth, having power under § 10 of the new chapter to “supervise the work done and measures taken by the boards of public welfare of the several towns in respect to persons assisted and service given under this chapter” and for that purpose to “make such rules relative to notice and reimbursement, and such other rules relating to the administration of this chapter, as it deems necessary,” adopted a rule purporting to require that a bureau of old age assistance shall consist of three persons, one of whom shall be a citizen other than a selectman or member of the board of public welfare, and that in a city or town assisting one hundred persons or more “a supervisor of old age assistance should be appointed by the bureau, who shall act as the executive officer of the bureau.”
We think that the Attorney General was right in expressing the opinion on April 13, 1937 (Report of the Attorney General for 1937, page 88) that the rule went beyond the rule-making power given by the statute. The Legislature, in our opinion, did not intend that the department should prescribe minimum requirements for the organization of bureaus of old age assistance, the establishment of which had been entrusted to the local boards of public welfare.
When, on October 26, 1937, the petitioner was appointed supervisor of old age assistance in Newburyport, any lawful power to appoint him had to be derived from the authority given by § 2 of the new chapter 118A to establish a division of the local board of public welfare to be designated as the bureau of old age assistance. The rule must be disregarded. Since the local board of public welfare under that statute was the appointing authority, by implication it was the
Though the removal by the bureau was unauthorized, a writ of mandamus will not issue to reinstate the petitioner in the office of supervisor of old age assistance, unless he rightfully held that office. Therefore we must consider the validity of his permanent appointment to that office on October 26, 1937. That appointment was not made by any local board of public welfare consisting of a number of persons. It does not appear whether or not such a board was actually in existence at the time, but the implication from the record is that no such board was functioning. On June 19, 1933, the city council of Newburyport, acting under a Plan B charter (G. L. [Ter. Ed.] c. 43, §§ 56-63), had purported by ordinance to abolish the local board of public welfare, consisting of three members, and to transfer its powers and duties to a single relief commissioner to be appointed annually by the mayor, subject to confirmation by the city council. The permanent appointment of the petitioner on October 26, 1937, was made by the person who had been appointed in that manner to the office of relief commissioner. It was not until December 17, 1937, that by ordinance the ordinance of June 19, 1933, was repealed, and a board of public welfare consisting of three persons was again established. It is unimportant, in our opinion, to consider whether the ordinance of December 17, 1937, was properly advertised under G. L. (Ter. Ed.) c. 43, § 23, and c. 40, § 32A.
By the city charter in force just before the adoption of a Plan B charter in 1919, the board of overseers of the poor
Passing without decision the question whether a board of public welfare is a department of the city within the power granted by that section (Attorney General v. Stratton, 194 Mass. 51; King v. Mayor of Quincy, 270 Mass. 185, 187; Broadhurst v. Fall River, 278 Mass. 167; Crocker v. Deschenes, 287 Mass. 202), it is to be observed that the exercise of the power to reorganize departments under G. L. (Ter. Ed.) c. 43, § 5, must be “consistent with general laws.” Sullivan v. Lawson, 267 Mass. 438. The changes made under that section that have been given effect have been in departments the organization of which is not regulated by general statute. McLaughlin v. Mayor of Cambridge, 253 Mass. 193. Reynolds v. McDermott, 264 Mass. 158.
By G. L. (Ter. Ed.) c. 41, § 1, every town is required, except when other provision is made by law, to choose by ballot from its inhabitants three or five members of the board of public welfare, for the term of one or three years. By G. L. (Ter. Ed.) c. 4, § 7, Thirty-fourth, the word town,
Parts of G. L. (Ter. Ed.) c. 41, § 1, such as the provision for selectmen, are obviously inapplicable to cities. But other parts have already been held to apply to cities. Attorney General v. Tillinghast, 203 Mass. 539, 545 (auditors). Hooker v. McLennan, 236 Mass. 117, 119 (assessors). Many special city charters have contained express provisions for administrative boards and officers that may have superseded the provisions of that section. But we find no provision under which a city which had no earlier charter providing for a board of public welfare but adopted one of the five short forms of charter offered by G. L. (Ter. Ed.) c. 43 as now amended could have a board of public welfare, except the provision of c. 41, § 1. See Gilliatt v. Quincy, 292 Mass. 222. Most sections of the General Laws that mention a local board of public welfare merely assume its existence. A number of sections assume a plurality of members. G. L. (Ter. Ed.) c. 115, § 19; c. 117, §§ 3, 17, 25; c. 119, § 49; c. 127, § 95. We think that the ordinance that substituted a single relief commissioner for the board of public welfare of three members was not "consistent with general laws,” and was void. The office claimed by the petitioner was created by an officer who had no legal existence, and consequently the office itself has no legal existence. The petition was rightly dismissed.
Exceptions overruled.