311 Mass. 260 | Mass. | 1942
These are two petitions for writs of mandamus brought against Leo P. Senecal, the mayor of the city of Chicopee, and Elias A. Mossey, acting supervisor of the ash and garbage department of that city. Each petitioner seeks reinstatement to his former position as a laborer in that department. The cases were heard by a judge of the Superior Court, who ordered the writ to issue in each case. The respondents excepted to the denial of identical requests for rulings in each case.
1. The first question to be determined is whether the provisions of G. L. (Ter. Ed.) c. 31, and the rules established thereunder, relative to employment of laborers designated as the “labor service” were accepted by the board of aider-men of said city. (G. L. [Ter. Ed.] c. 31, § 47; c. 4, § 7, First.) By the charter of said city (St. 1897, c. 239; St. 1898, c. 132) the administration of all its affairs, except those of the public schools, is vested in an executive department consisting of one officer, the mayor, and a legislative department consisting of a single body, the board of aider-men. (St. 1897, c. 239, § 2.) Section 14 of said c. 239 provides, among other things, that the board of aldermen shall determine the rules of its own proceedings, that a journal of its proceedings shall be kept, that the vote of the board upon any question shall be taken by roll call when the same is requested by at least three members, and that a majority of the members shall constitute a quorum.
The board of aldermen held a meeting on August 8, 1939, at which sixteen of its seventeen members were present. A motion was carried that when the board adjourned, it adjourn to August 15, 1939. A motion was then made to adjourn. The president of the board called for a hand vote
The respondents contend that the provisions of said c. 31 were not accepted by the board for the reasons that the meeting of the board had adjourned before the vote purporting to accept the statute was passed, and that, in any event, the acceptance required a vote of at least two thirds of the members of the board.
The city charter requires the election of a president of the board (St. 1897, c. 239, § 12). It further provides that a majority of the members of the board shall constitute a quorum and that the board, so far as is not inconsistent with the charter, shall have and exercise all the legislative powers of towns and the inhabitants thereof, and also all the powers that were vested by law in the city and its inhabitants at the time of the passage of said c. 239.
The requirement that the vote of the board “upon any question” shall be taken by roll call when the same is requested by at least three members is binding upon the president, as the presiding officer, and is one with which he is required to comply. The records of the meeting that are a part of the agreed facts, not only fail to show any such compliance, but disclose that when the roll call on the
If it be assumed, however, that the rule of the board of aldermen is valid, the requirement of a two-thirds vote was complied with. General Laws (Ter. Ed.) c. 4, § 6, Seventh, provides that wherever action by more than a majority of a city council is required, action by the designated proportion of the members thereof, present and voting thereon, in a city having a single legislative board, shall be a compliance with such requirement. See Ellison v. Haverhill, 309 Mass. 350. There were ten of the seventeen members present when the vote was taken, nine of whom voted in the affirmative.
The charter (St. 1897, c. 239, § 28) provides that the executive powers of the city shall be vested solely in the mayor, and may be exercised by him either personally or through the several officers or boards of the city in their departments under his general supervision and control. The charter makes no provision for an ash and garbage department, but § 47 of said c. 239 provides that the mayor, the president of the board of aldermen and the city engineer, shall constitute a board of commissioners who, among other things, shall have general charge of all matters relating to the executive or administrative departments that are not included in the duties of any other administrative officer or board; and § 48 of said chapter provides that all administrative officers and boards “herein . . . and . . . hereafter established” by the board of aldermen not coining
The respondents concede that, upon the acceptance by the municipality of the civil service act as to the “labor service,” each petitioner acquired the status of an employee
The resumption of work in the department by the petitioners cannot be regarded as new appointments' to the classified civil service. No attempt was made tó comply with the provisions of G. L. (Ter. Ed.) c. 31, § 15, as appearing in St. 1939, c. 238, § 21, relative to appointments and certifications therefor. The respondents, in effect, concede this. Nevertheless, when notice was given to Kaeble of his alleged removal on June 10, 1940, notice was sent to the “Civil Service Commission.” From the record of the civil service commission of the employment of Otfinowski, which was in evidence, it seems that notice of his removal on August 6, 1940, was also given. This record also contains the statement that the department (evidently the ash and garbage department) had informed the civil service commission that Otfinowski did not work out his- full probationary period as he was first “laid off” on February 6, 1940, and rehired as a laborer on February 15, 1940-; and the record further recites that, “From information given in department’s letter of 9.9.40, he [Otfinowski] has completed his probationary, period and is considered a permanent employee of the Ash & Garbage Department.” It would seem that the notices to the “ Civil Service Commission” were given in an attempt to comply with the provisions of G. L. (Ter. Ed.) c. 31, § 18, as amended by St.
The attempted removals of the petitioners on January 23, 1940, and February 6, 1940, respectively, were without effect. It follows from this that each petitioner acquired the status of a permanent employee and could • only be removed in accordance with the provisions of G. L. (Ter. Ed.) c. 31, § 43, which, among other things, provides that such an employee cannot be removed from such employment “except for just cause, and for reasons specifically given him in writing within twenty-four hours after such removal.” The alleged notice of removal of Kaeble on June 10, 1940, signed by Mossey as acting supervisor is as follows: “I am sorry to inform you that your services as a Laborer in the Ash and Garbage Department in the City of Chicopee will terminate as of Monday, June 10th, 1940.” The notice to Otfinowski of August 6, 1940, is in identical language except as to the date on which his services were to terminate. The respondents do not contend that these notices complied with the provisions of said § 43. See Tucker v. Boston, 223 Mass. 478; Bailen v. Assessors of Chelsea, 241 Mass. 411, 413, 414, and cases cited; Corrigan v. School Committee of New Bedford, 250 Mass. 334, 338; Murphy v. Casey, 300 Mass. 232, 234.
3. There was no error in the denial of the respondents’ requests for rulings. One of these raised the question whether the provisions of G. L. (Ter. Ed.) c. 31 had been legally accepted, and the others relate to the status of the petitioners with reference to their employment, including the question whether they were lawfully removed from their employment, Kaeble in January, 1940, and Otfinowski in February, 1940, and whether the several petitions should be dismissed.
Exceptions overruled.