Adie v. Mayor of Holyoke

• Decision Date: 29 May 1939
• Parties: ADIE v. MAYOR OF HOLYOKE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

303 Mass. 295
21 N.E.2d 377

ADIE
v.
MAYOR OF HOLYOKE et al.

Supreme Judicial Court of Massachusetts, Hampden.

May 29, 1939.

Report from Supreme Judicial Court, Hampden County.

Mandamus proceeding by John F. Adie against the Mayor of Holyoke and others to compel the respondents to recognize the petitioner as a member of the Municipal Gas and Electric Commission of the City of Holyoke, and to restrain the named defendant from acting as a member of such commission.

Peremptory writ issued.

[21 N.E.2d 378]

J. M. Healy and F. E. Button, both of Holyoke, for petitioner.

H. J. Lacey, of Holyoke, for respondent Tighe.

C. S. Lyon, of Holyoke, for respondent Mayor of Holyoke.

J. R. Nolen, of Holyoke, for respondent Ranger.

DOLAN, Justice.

This is a petition for a writ of mandamus to compel the respondents to recognize the petitioner as a member of the municipal gas and electric commission of the city of Holyoke, from which office the respondent William P. Yoerg, as mayor of that city, purported to remove him; and to restrain the mayor from ‘intruding himself’ as at acting member of that commission. The other respondents, James L. Tighe and Casper J. Ranger, are members of the commission. The case was heard by a single justice of this court who reported it, without decision, for determination by the full court upon all questions of law raised by the petition and answers.

The allegations of the petition may be summarized as follows: On June 7, 1938, the respondent mayor of the city of Holyoke, hereinafter referred to as the mayor acting under St.1922, c. 173, appointed the petitioner a member of the municipal gas and electric commission of the city of Holyoke, hereinafter referred to as the commission, for a term of six years from the first Monday of July, 1938. The petitioner duly qualified under the appointment on July 1, 1938. On January 9, 1939, the mayor notified the petitioner in writing that he was removed from that office. On January 10, 1939, the board of aldermen of the city of Holyoke, at a meeting called by the mayor to see if the board would approve his action in removing the petitioner, voted not to approve that action, and that leave be given to withdraw, without prejudice, the order seeking approval of his removal. On January 12, 1939, the mayor notified the city clerk, in writing, that he had appointed himself as an acting member of the commission pending the appointment of a commissioner to fill the existing vacancy.

In his answer the mayor denies that the board of aldermen voted against the approval of his action in removing the petitioner, and says that they merely voted that leave be given to withdraw the order seeking

[21 N.E.2d 379]

their approval of his action without prejudice. He further answers that on January 9, 1939, after a discussion with the petitioner and the latter's counsel, he gave the petitioner a written notice of removal assigning as causes therefor (1) that the petitioner had ‘executed a contract between the City of Holyoke Gas and Electric Department and the Taylor- Logan Company a Corporation in which * * * [the petitioner was] personally interested, said contract having been so executed by * * * [the petitioner] both in * * * [his] capacity as a Commissioner of the Municipal Gas and Electric Commission and also in * * * [his] capacity as an officer of said Taylor-Logan Company,’ and (2) ‘For the good of the service.’ The respondent Ranger in his answer states that the mayor had authority to remove the petitioner, and that he [Ranger] ‘must recognize’ the mayor as a member of the commission. The respondent Tighe in his answer states that the petitioner is ‘a valid existing member’ of the commission ‘regardless of the acts' of the mayor.

The office in question was first provided for by St.1922, c. 173. Section 1 provides that ‘There is hereby established an unpaid commission to be known as the municipal gas and electric commission of the city of Holyoke, to consist of three members, who shall be appointed in the manner and for the terms hereinafter provided. Said commission shall be vested with all the powers and duties heretofore exercised by the mayor of said city under the provisions of chapter one hundred and sixty-four of the General Laws, and in addition thereto shall have such powers and duties as are now conferred or imposed by said chapter upon municipal light boards in towns.’ Section 2 provides that ‘The mayor of said city shall, subject to confirmation by the board of aldermen, appoint prior to July first, nineteen hundred and twenty-two, one member of said commission to serve for two years, one for four years and one for six years, from the first Monday of July, and thereafter as the term of any member expires, a successor shall be appointed for the term of six years. Vacancies shall be filled in like manner for unexpired terms. The members shall in all cases hold office until their successors are chosen and qualified.’ Section 3 provides for the taking effect of the act upon its acceptance by the board of aldermen. The city charter contains no provision relative to these offices.

The issue argued by the parties is whether the mayor has the right to remove for cause or otherwise a member of the commission.

It is contended on behalf of the respondent mayor that he had authority to remove the petitioner under section 26 of St.1896, c. 438, entitled ‘An Act to revise the charter of the city of Holyoke.’...