Del Duca v. Town Administrator of Methuen

• Decision Date: 04 June 1975
• Citation: 368 Mass. 1,329 N.E.2d 748
• Parties: Ernest V. DEL DUCA v. TOWN ADMINISTRATOR OF METHUEN et al. (and a companion case) 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 748

329 N.E.2d 748

368 Mass. 1

Ernest V. DEL DUCA

v.

TOWN ADMINISTRATOR OF METHUEN et al. (and a companion case)¹

Supreme Judicial Court of Massachusetts, Essex.

Argued Oct. 8, 1974.

Decided June 4, 1975.

Michael P. Curran, Canton (Robert D. Smith, Arlington, with him), for defendants.

George Karelitz, Haverhill, for plaintiffs.

Before TAURO, C.J., and REARDON, QUIRICO, HENNESSEY and KAPLAN, JJ.

QUIRICO, Justice.

These are appeals by the defendants in two cases, consolidated for trial, from orders of a Superior Court judge that writs of mandamus ² issue reinstating the plaintiffs as members of the planning board of the town of Methuen. The judge filed a document entitled 'Findings, Rulings and Order' in which he said that '(t)he cases, in effect, were submitted to me for decision as a case stated. G.L. c. 231, § 126.' ³ The facts are not in dispute.

On March 16, 1938, Methuen, having a population in excess of 10,000, adopted a by-law establishing a planning board under G.L. c. 41, § 81A. ⁴ This planning board replaced the planning board which had been established in 1923 under G.L. c. 41, § 70. The by-law adopted in 1938 provided that '(a) Planning Board is hereby established under the provisions of General Laws, (Ter.Ed.) Chapter 41, Section 81A (Acts of 1936, Chapter 211) to consist of five members to be elected at the Annual Town Meeting in March, 1939, and thereafter in accordance with the provisions of the statute.'

On March 1, 1971, the plaintiff Leone was elected a member of the planning board for a five-year term. On March 6, 1972, the plaintiff Del Duca was likewise elected to a five-year term on the board. On the latter date, the voters of Methuen also adopted, effective January 1, 1973, a new town charter under G.L. c. 43B, the Home Rule Procedures Act, inserted by St. 1966, c. 734, § 1. This act set forth procedures to be followed by cities and towns seeking to take advantage of the powers made available to them by art. 2 of the Amendments to the Massachusetts Constitution, as supplanted in 1966 by art. 89 of the Amendments, commonly denominated the Home Rule Amendment. A challenge to the validity of the 1972 vote by which Methuen adopted its charter was rejected by this court in TIBERIO V. METHUEN, --- MASS. ---, 307 N.E.2D 310 (1974)^A.

The new Methuen charter altered the pree xisting governmental structure of the town in several important respects. Perhaps the most significant of these changes was the replacement of the town meeting with a legislative-executive system headed by a town council and a town administrator. On January 2, 1973, the new town council adopted, effective immediately, the 'General Ordinances of the Town of Methuen.' Section 6.20 of these ordinances was entitled 'Planning Board.' This section provided: '(a) Mode of Appointment, Term of Office--The town administrator shall appoint a planning board which shall consist of seven members. The term of office of each member of the planning board shall be for three years so arranged that as nearly an equal number of terms as is possible shall expire each year. (b) Qualifications of Members--The members of the planning board shall be persons especially fitted by education, training and previous experience to perform the duties of the office. (c) Powers and Duties--The planning board shall make studies and prepare plans of the resources, possibilities and needs of the town. They shall prepare and may from time to time amend and perfect a comprehensive plan which shall set forth in both graphic and textual forms plans, programs and policies to govern the future development of the entire town. The planning board shall also be the sub-division control agency of the town. The planning board shall have such additional powers and duties as are provided to planning boards by chapter 41 of the general laws and chapter 10 of these ordinances.'

On January 8, 1973, the town administrator appointed seven persons to the planning board, three for one-year terms, and two each for two and three-year terms. The town council confirmed these appointments. The plaintiffs were the only two of the five members of the preexisting board who were not appointed to the new board.

On the foregoing facts, the judge ordered issuance of writs of mandamus reinstating the plaintiffs and the other three members of the preexisting board to their positions for the remainder for the terms to which they had been elected. The judge further ordered the town clerk to change the town records to reflect (a) that the members of the preexisting board had been reinstated to their elected terms, (b) that § 6.20 of the ordinances is a nullity, and (c) that the 1938 by-law establishing the planning board under G.L. c. 41, § 81A, is still in force and effect in Methuen. The defendants appealed therefrom to the Appeals Court. We then granted their application for direct appellate review by this court pursuant to G.L. c. 211A, § 10(A). With modifications for reasons hereafter explained, we affirm the orders.

In granting the writs of mandamus, the judge apparently relied primarily on Chief of Police of Dracut v. Dracut, 357 Mass. 492, 258 N.E.2d 531 (1970). In that case we considered whether the Home Rule Amendment or the Home Rule Procedures Act had changed our former law regarding a municipality's power to revoke its prior acceptance of a general law. The rule in this area, as stated in Brucato v. Lawrence, 338 Mass. 612, 615--616, 156 N.E.2d 676, 679 (1959), was: 'In the absence . . . of some indication in the language, the form, or the subject matter of a particular statute enacted subject to local acceptance, that an acceptance once given may be revoked, the effect of a valid acceptance by a city or town is to make the statute operative in that community until the statute is repealed or amended. Once the condition precedent stipulated by the Legislature to the taking effect of the statute in the community is satisfied, it becomes applicable statute law, subject to change, as in the case of other statutes, only by sebsequent action of the Legislature.' In the Dracut case, 357 Mass. at 497--498, 258 N.E.2d at 534, we concluded: 'In enacting the Home Rule Procedures Act (G.L. c. 43B) the Legislature included no grant of authority to municipalities to rescind, by unilateral action, their prior acceptance of any provision of the General Laws. That omission may reflect the Legislature's concern that if municipalities had unbridled authority to rescind prior acceptance of basic provisions of the General Laws by unilateral action, there might result frequent and precipitous changes in the administration of municipal affairs which might produce chaos, all contrary to the public interest. Consequently, we hold that the Home Rule Amendment and the Home Rule Procedures Act do not render inoperative the rule laid down in Brucato v. Lawrence.'

As the defendants point out, however, the statute involved here is not of the same sort as those involved in the Lawrence and Dracut cases. But this distinction, if anything, works in favor of the plaintiffs. General Laws c. 41, § 81A, when read in conjunction with G.L. c. 41, §§ 70 and 81B, requires every town with a population of 10,000 or more and every city except Boston to establish a planning board under that section, unless the city or town had established a planning board under § 70 prior to 1937 and desired to continue with that original format. No municipal vote is required to accept the legislation in question here. ⁵ The inference that the defendants draw from this fact is that G.L. c. 41, § 81A, is 'strictly 'enabling legislation. " Since neither citation nor explanation is offered for this contention, we cannot be certain just what is meant by it. In any event, we think it clear that if a municipality is prohibited from revoking its acceptance of a statute which it was free to decline to accept to begin with, it is a fortiori prohibited from rescinding its implementation of a statute which it was required to implement. The town being powerless to rescind its implementation of the statute, it is also powerless, at least under our pre-Home Rule precedents, to cut short the terms of those elected to the board. See, for example, Crocker v. Deschenes, 287 Mass. 202, 207--210, 191 N.E. 678 (1934); Adie v. Mayor of Holyoke, 303 Mass. 295, 301--302, 21 N.E.2d 377 (1939). Compare Kaczmarski v. Mayor of Springfield, 346 Mass. 432, 435--436, 193 N.E.2d 574 (1963). These cases indicate that a municipality cannot ordinarily remove members of a board or agency established pursuant to a general law, even where there exists cause for removal, unless the general law itself explicitly or implicitly authorizes such removal. The present case does not require us to determine whether any modification of this rule is appropriate in light of the Home Rule Amendment because the language of G.L. c. 41, § 81A, itself resolves the issue. The statute provides that '(a)ny member of a (planning) board . . . established in a city may be removed for cause, after a public hearing, by the mayor, with the approval of the city council.' The statute having specified the circumstances in which removal may occur, it may be argued that removal is prohibited in other circumstances. Cf. Commonwealth v. Berkshire Life Ins. Co., 98 Mass. 25, 29 (1867). Even if we read the statutory reference to cities to include towns with representative forms of government, see fn. 6, infra, thus permitting the town administrator in Mathuen to remove a member of the board for cause, we can still find no authority to permit a removal in the absence of cause. The fact that the attempted removal occurred in the course of an attempt to create a 'new' board does not affect this conclusion.

The defendants nevertheless further suggest that a vote of the representatives of a town which has adopted a home rule charter can some how negate the force of a mandatory general law...