365 Mass. 655 | Mass. | 1974
To the Honorable the Senate of the Commonwealth of Massachusetts:
The Justices of the Supreme Judicial Court respectfully submit this reply to the question set forth in an order adopted by the Senate on February 28, 1974, and transmitted to us on March 6, 1974. The order recites (1) that there is pending before the Senate a bill entitled, “An Act relative to the filing of petitions for legislation by towns with a town council form of government” (House No. 845), a copy of which is transmitted with the order; (2) that the bill would require petitions for legislation from towns with a town council form of government to be “approved by the town council and . . . town administrator”; (3) that the town administrator of at least one municipality with a town council form of government is appointed by the legislative body and serves at its pleasure as the administrative officer of the town; and (4) that grave doubt exists as to the constitutionality of the bill if enacted into law.
The question is:
“Would the enactment of said bill which requires the approval of legislative petitions by the town administrator, as well as the town council, be constitutional in view of the provisions of section 8 of Article LXXXIX of the Amendments to the Constitution of the commonwealth which require that petitions for special laws be ‘approved by the voters of a city or town, or the mayor and city council, or other legislative body of a city or the town meeting of a town with respect to a law relating to that city or town?’ ”
We invited briefs from interested persons to be filed by April 12. In response, briefs or other memoranda were filed by the following: the Attorney General, the town of Meth-uen, and attorneys associated with two Boston law firms expressing an interest in municipal bond matters.
The question refers to, and our reply depends on the proper construction of, art. 2 of the Amendments to the Constitution of the Commonwealth, as supplanted by art. 89 of the Amendments (sometimes known as the Home Rule Amendment and hereafter referred to as art. 89). Article 89, § 8, confers on the General Court “the power to act in relation to cities and towns” by special laws enacted “on petition filed or approved by the voters of a city or town, or the mayor and city council, or other legislative body, of a city, or the town meeting of a town, with respect to a law relating to that city or town. ’ ’
The words “city” and “town” are not defined in the Constitution. “If possible, the amendment must be construed so as to accomplish a reasonable result and to achieve its dominating purpose. Its words should be interpreted in the sense most obvious to the common intelligence, because a matter proposed for public adoption must be understood by all entitled to vote.” Lincoln v. Secretary of the Commonwealth, 326 Mass. 313, 317 (1950), and cases cited. Opinion of the Justices, 362 Mass. 895, 903 (1972). “Article 89 effected substantial changes in the legislative powers of the General Court and the cities and towns.” Opinion of the Justices, 356 Mass. 775, 787 (1969). The purpose of § 8 is to define the circumstances in which, and the procedure by which, the General Court has the power “to act in relation to cities and towns.” That part of
We believe that it was the intent of the framers of § 8 that a petition for a special act be filed or approved either by the voters or by the responsible legislative body of the municipality. But § 8 is not the section defining the permissible types of charter, and we think its operation depends, not on the choice of the word “city” or “town,” but on the form of government in fact adopted by a municipality, whatever it may call itself. Compare art. 89, §§ 2, 3; G. L. c. 43B, § 1. Accordingly, we need not decide whether a “town council” such as is referred to in House No. 845 is a representative “town meeting,” whether a town of the sort referred to in the bill is a “town” at all, or whether the “town council” is the “legislative body” of a “city,” for the purposes of § 8. Rather, mindful that the words “city” and “town” are not dispositive, and looking to the form of government adopted, we must determine whether the procedure required by House No. 845 comports in its essential characteristics with that contemplated by the framers of § 8.
One requirement established by § 8, and the only one we need discuss for present purposes, is action by a legislative body, whatever the form of government. Municipal legislative bodies often elect or appoint various municipal officers. But unless officers so selected are members of the legislative body, § 8 does not contemplate their participation in the filing or approval of petitions. Officers not popularly elected are rarely given independent legislative powers, and G. L. c. 43B, § 10, defines “mayor” as “an officer elected by the voters as the chief executive officer of a city or an officer lawfully acting as such.” In none of the three municipalities affected by House No. 845 is the town administrator or town manager elected by the voters, made a voting member of the “town council,” or given a power of legislative veto. He is not a “mayor” under the definition quoted, and we do not think he is a “mayor” under § 8, even if the town is treated as a “city” for the purposes of § 8.
Moreover, § 8 evinces no intention to prescribe different legislative procedures for a petition for a special act from
We answer'the question, “No.”
G. Joseph Tauro
Paul C. Reardon
Francis J. Quirico
Robert Braucher
Edward F. Hennessey
Benjamin Kaplan
Herbert P. Wilkins
Young v. Mayor of Brockton, 346 Mass. 123, 127 (1963), treating a city manager as a “mayor” under G. L. c. 138, § 4, dealt with the executive function of appointment rather than a legislative function.