270 Mass. 185 | Mass. | 1930
This is a petition for a writ of mandamus to compel the respondent, the -mayor of the city of Quincy, to recognize the petitioner as the auditor of accounts of that city. The petition was dismissed as matter of law and the petitioner excepted.
On February 29, 1928, the person who was performing the duties of auditor of accounts died. On or about that date the respondent purported to appoint one Elizabeth N. Dunn to the position. She has taken the required oath and is performing the duties thereof. On March 5, 1928, the city council purported to elect the petitioner to the position. He also has taken the required oath.
The city of Quincy in 1916 adopted as its charter Plan A of St. 1915, c. 267. See now G. L. c. 43, §§ 1-55. This charter went into effect January 1, 1917. Under an express provision of the charter in force before January 1, 1917, the auditor of accounts was elected by the city council. St. 1888, c. 347, § 14. There was also a city ordinance providing for his election by the council which has not been repealed expressly. The question raised by this petition is whether under the present charter the auditor of accounts is to be elected by the city council as formerly or appointed by the mayor.
The present charter vests in the city council the legislative powers of the city (G. L. c. 43, § 50) and declares that they shall not “be abridged or impaired” by it. G. L. c. 43, § 3. The city council is authorized to elect its president (G. L. c. 43, § 50) and the city clerk (G. L. c. 43, § 18, cl. 3), but there is no express provision for election by it of any other officer.
The present charter provides for the election of a “mayor . . . who shall be the chief executive officer of the city,” (G. L. c. 43, § 48) and, further, that “all heads of departments and members of municipal boards, except the school committee, officials appointed by the Governor, and assessors if elected by vote of the people . . . shall be appointed by the mayor without confirmation by the city council,” (G. L. c. 43, § 52) and may be removed by him. G. L. c. 43, § 54. Thus the auditor of accounts is not excepted
The auditor of accounts is one of the “heads of departments” within the meaning of the charter. The word “departments,” as used therein, is not restricted to the two basic departments of a municipality, — the legislative and the executive. On the contrary it applies to the “executive and administrative departments,” among which executive and administrative functions are distributed. G. L. c. 43, § 5. See also §§ 1, 19, 29, 30. And see Attorney General v. Trehy, 178 Mass. 186, 193-194; Trustees of the Boston Public Library v. Rector of Trinity Church, 263 Mass. 173. Intrinsically the functions of an auditor of accounts of a city are executive and administrative rather than legislative. G. L. c. 41, §§ 50-54, as amended by St. 1922, c. 135, and St. 1924, c. 33. (G. L. c. 4, § 7, Thirty-fourth.) They are not merely ministerial and incidental to the legislative powers of the city council. See Attorney General v. Tillinghast, 203 Mass. 539, 543-544. According to the scheme of the charter, the primary distribution of executive and administrative functions is among “departments,” and further distributions, if made, are among “divisions.” See G. L. c. 43, § 1. The auditing branch of the city government of Quincy, as now organized, is not subordinate to or combined with any other executive or administrative branch thereof — except as it is subordinate to the mayor, “the chief executive officer” — so as to be a “division” rather than a “department.” The auditor of accounts is in charge of this “department,” in which there are two or more employees, and is its “head” within the meaning of the charter.
The present charter revoked all “that has gone before concerning the same subject matter . . . except as preserved by the new charter.” Cunningham v. Mayor of Cambridge, 222 Mass. 574, 577. Safford v. Lowell, 255 Mass. 220, 224. St. 1915, c. 267, Part I, § 11 (see now G. L. c. 43,
It follows that under the present charter power to appoint the auditor of accounts is vested in the mayor, that the petitioner is not entitled to the office, and that the petition was dismissed properly. It is not necessary to determine whether, apart from G. L. c. 43, § 7 (formerly St. 1915, c. 267, Part I, § 7) the mayor would have authority to appoint the auditor of accounts under the provision constituting him “the chief executive officer of the city.” G. L. c. 43, § 48, formerly St. 1915, c. 267, Part II, § 3. See Attorney General v. Varnum, 167 Mass. 477, 480.
After the case was entered in this court, a motion was made by the petitioner, and assented to by the respondent, to amend the petition by joining Elizabeth N. Dunn as a party respondent, and she has appeared and agreed to adopt the answer of the respondent mayor of Quincy. This amendment is proper and may be allowed here. G. L. c. 231, § 125; c. 249, § 5. Keough v. Holyoke Board of Aldermen, 156 Mass. 403. Andrews v. Board of Registrars of Voters, 246 Mass. 572.
Amendment of petition allowed.
Exceptions overruled.