MacBrayne v. City Council

241 Mass. 380 | Mass. | 1922

Rugg, C. J.

These are petitions for writs of mandamus which have been reserved for our determination on the petitions, answers, agreed statement of facts and motions of Redmond Welch to be made a party.

The present charter of the city of Lowell, St. 1921, c. 383, became operative on the second day, being the first Monday, of January, 1922.

The petitioner Brown, as mayor of the city of Lowell, on January 3, 1922, nominated the petitioner MacBrayne to be superintendent of police. This nomination was within the power of the mayor under § 22, Part 1 of the charter, but it was “ subject to confirmation by a majority vote of all the members of the city council.” The nomination was laid on the table by the city council as soon as received and has not further been acted upon. On the same day the petitioner Brown removed from the office of superintendent of police Redmond Welch, who was lawfully holding that office and had held it for about ten years immediately preceding. Reasons were stated in the removal order which was filed with the city council. It is provided by § 15 of the charter that the terms of office of numerous city officials, including the superintendent of police, “shall terminate at ten o’clock in the forenoon of the first Monday in January, nineteen hundred and twenty-two. They shall continue in office, however, until their successors have been appointed, confirmed and qualified.” In § 36, Part 1, are these words: “The mayor shall have the power to suspend or remove from office any administrative head of a department ... for cause which in his judgment he may deem sufficient, and shall file with the city council, through the city clerk, his reasons therefor. The administrative head of a department . . . removed by the mayor, may, within forty-eight hours after said notice of . . . removal has been received, file with the city clerk a demand for a public hearing before the city council, and shall be privileged to be represented by counsel and present witnesses at said hearing!” By Part 2 of the same section power is conferred upon the city council after a hearing, by a two thirds vote of all its members, to reinstate a removed officer. Pursuant to this provision Welch demanded a public hearing, which was not finished when these petitions were filed.

The object of these petitions is to require the city council to refrain from taking further action in relation to the reinstatement of Welch.

Welch has petitioned to become a party to these petitions and he has filed a brief. He is a “third person who has or claims a right or interest in the subject matter” so that the court may permit him to appear in mandamus proceedings. G. L. c. 249, § 5. The writ of mandamus may be used to try title to a municipal office. Keough v. Aldermen of Holyoke, 156 Mass. 403. Wheeler v. Carter, 180 Mass. 382. It is sufficient for the purposes of the present case to permit him to act as amicus curiae. Commonwealth v. Kozlowsky, 238 Mass. 379, 382. His brief and argument have been carefully considered.

The regular term of office of Welch as superintendent of police terminated on the first Monday of January, 1922. But the office did not then become vacant, because the same section of the charter, which declared the point of time of termination, extended or prolonged his former term of office until his successor should be appointed, confirmed and qualified. The statute .did not work an ouster. The term had come to an end but the former incumbent continued to hold by virtue of his immediately preceding appointment until such time as his successor should become ready under the new charter to take his place, when he "would automatically be displaced. It is within the power of the Legislature to extend and to change the tenure of a city officer. Barnes v. Mayor of Chicopee, 213 Mass. 1, 5. The plain effect of the words of § 15 already quoted is to prevent the existence of a vacuity in the office, by continuing as a de jure officer the previous incumbent, whose term otherwise has come to an end, until his successor, appointed as a permanent officer under the charter, shall be ready to take over the duties of the office. Thus a hiatus will be avoided. It is a practical provision to preserve the good order of the community by extending in office continuously a head of the police department. There was no vacancy in the office such as would have existed in case of death, resignation, removal, suspension or other supervening cause. The fixed term of office simply came to an end, so that in accordance with the provisions of the charter a new officer could be named as successor, but in the meantime the previous superintendent continued in office. Attorney General v. Loomis, 225 Mass. 372. People v. Tilton, 37 Cal. 614. Commonwealth v. McAfee, 232 Penn. St. 36. State v. Hadley, 64 N. H. 473. 1 Dillon, Mun. Corp. (5th ed.) § 414, and cases collected in note. It follows that there was no vacancy in the office of superintendent of police arising from the terms of § 15. Hence the power to make a temporary appointment to that office without confirmation by the city council under § 43, Part 2, did not vest in the mayor by reason of the terms of § 15.

The mayor, however, removed Welch from office under § 36, Part 1, already quoted. The same power is referred to in § 43, Part 2. This removal was within the power of the mayor as set forth in those two sections. Although there is room for doubt on this point, the sounder construction of the statute on the whole is that the prolongation of the previous term wrought by the words of § 15 does not have the effect of exempting such holdover officers from the general power of removal by the mayor. The force of that section puts the officers whose terms thus are extended on the same footing as all other officers in respect to removal. It affords them no special immunity and confers on them no tenure superior to that of other city officers. There are no limitations expressed in § 36, Part 1, and § 43, Part 2, on the broad power of the mayor to remove city officers. Therefore, the mayor had power to remove Welch from office.

It results from these conclusions that the city council was acting pursuant to its charter obligation in granting a public hearing to Welch. He duly filed his demand therefor and was entitled to it as of right. It is the duty of the city council to continue that hearing. It will be within its jurisdiction after that hearing to reinstate Welch in the office of superintendent of police by a two thirds vote of all its members. Upon the passage of such a vote the order of removal made by the mayor will become invalid. § 36, Part 2.

The temporary appointment of the petitioner MacBrayne as superintendent of police by the mayor after his removal of Welch is valid only as a temporary appointment, according to the tenure established by § 43, Part 3.

In each case the entry may be

Petition dismissed.