| Mass. | Nov 26, 1907
For twenty-eight years the petitioner has served as clerk of the Watuppa Water Board of Fall River, to which office he was annually elected by the members of the board during all this period. At the last annual organization of the board he was not elected, but the respondent Kirby was chosen in his place. He brings this petition for a writ of mandamus to compel the board to recognize him as its clerk, instead of Kirby, on the ground that he held an office for'a term extending indefinitely into the future, from which he could not be removed except for cause, upon a hearing. He relies upon the St. 1904, c. 314, which protects persons holding office or employment in the classified public service of the Commonwealth, or in any city, county or town thereof, from arbitrary removal during their term.
But this statute applies only to a removal during the term of the office or appointment, and does not apply to an officer whose term of office has expired. Smith v. Mayor of Haverhill, 187 Mass. 323" court="Mass." date_filed="1905-01-11" href="https://app.midpage.ai/document/smith-v-mayor-of-haverhill-6428797?utm_source=webapp" opinion_id="6428797">187 Mass. 323. Lahar v. Eldridge, 190 Mass. 504" court="Mass." date_filed="1906-03-01" href="https://app.midpage.ai/document/lahar-v-eldridge-6429272?utm_source=webapp" opinion_id="6429272">190 Mass. 504. The respondents contend that the petitioner’s term of office expired on the election and qualification of his successor, and that therefore he was not removed from his office. This contention rests upon a construction of the ordinance of the city relative to the water board, taken in connection with the action of the board and of the petitioner under it.
This ordinance was ordained in 1874 under the St. 1871, c. 133, § 7, and it has been reordained without material change in successive revisions of the city ordinances. In the latest revision §§ 4 and 5 of c. 46 are as follows :
“ Section 4. The officers of the board shall be a president and a clerk, who shall be chosen by the members thereof by ballot. The clerk shall not be a member of the board.
“ Section 5. A superintendent may be appointed by the board, who, with the clerk thereof, and all such subordinate officers, agents and assistants as may be found necessary, and whom said board is hereby authorized to appoint shall hold their
Under c. 1, § 2, of the Revised Ordinances of 1904, these sections are to be treated as a continuation of the original ordinance.
The petitioner contends that under this ordinance the board could not manifest their pleasure effectively as to the length of his term of office by determining that it should be for one year, and he insists that all the time since his first election, he has been holding an office for life, from which, under the present statute, he could not be removed except for cause and after a hearing.
This ordinance must be construed in reference to the time when it was ordained. This was in 1874, ten years before the enactment of the earliest statute in Massachusetts for the improvement of the civil service. The ordinance leaves to the water board the determination in part of what subordinate officers, agents and assistants shall be appointed, and provides specially for a superintendent and clerk. By § 6 the clerk is made the water registrar. Inasmuch as there was at that time no law to control the manifestation of the pleasure of the board under this ordinance, if the contention of the petitioner is correct that it was not in the power of the board to prescribe the term for any one of these officers, agents or assistants, and if each one must be appointed for an entirely indefinite time, it would follow that no one of them could be appointed or employed with any certainty of retaining his place for a single week. Upon the petitioner’s construction of the ordinance, it was impossible for the board to declare its pleasure in advance by making an appointment or contract with any one of these persons which should limit the arbitrary exercise of their volitian for a single day in the future, if at any time they chose to remove him. It is hardly possible that the city council, in framing the ordinance, should have had such a purpose. It would greatly limit the efficiency of the board in their efforts to procure competent and trustworthy subordinates, if the board was forbidden to give them an assurance of any degree of per
This construction of the ordinance is the only one, under the statutes then existing/ that would give a subordinate officer or employee tenure for a single day after the board should choose to declare their pleasure to dismiss him immediately. It accomplishes a part of the purpose of the Legislature manifested in the enactment of the St. 1904, c. 314, upon which the petitioner founds his claim. If this last statute had been in effect when the ordinance was first ordained, there would be more ground for the petitioner’s argument.
In accordance with this construction of the ordinance the petitioner was elected for twenty-eight years in succession, only for terms of one year each, and he annually took the oath of office as for a new term. In the performance of his official duty he made a record of each of these successive elections. He now takes an extreme position inconsistent with his former conduct, when he contends that he has been holding office all the time
The petitioner’s term of office expired with the election of his successor, and the statute upon which he relies is inapplicable.
Petition dismissed,