Attorney Gen. ex rel. Cole v. Stratton

• Citation: 79 N.E. 1073,194 Mass. 51
• Parties: ATTORNEY GENERAL ex rel. COLE et al. v. STRATTON et al.
• Decision Date: 09 February 1907
• Court: United States State Supreme Judicial Court of Massachusetts

194 Mass. 51

79 N.E. 1073

ATTORNEY GENERAL ex rel. COLE et al.

v.STRATTON et al.

Supreme Judicial Court of Massachusetts, Essex.

Feb. 9, 1907.

Report from Supreme Judicial Court, Essex County.

Proceeding by the Attorney General, on the relation of Allen H. Cole and others, against Frank B. Stratton and others. The petition was dismissed and the case was reported to the full court. Information dismissed.

Information in the nature of quo warranto to require respondents to show by what warrant and authority they exericse the office of members of the board of health of the town of Swampscott. In the Supreme Judicial Court, John W. Hammond, J., dismissed the petition and reported the case to the full court.

Frank L. Simpson, F. M. Carroll, and Wm. H. Niles, for relators.

Jas. H. Sisk, William E. Sisk, and Richard L. Sisk, for respondents.

KNOWLTON, C. J.

This is an information in the nature of a quo warranto to require the respondents to show by what warrant and authority they exercise the office of members of the board of health of the town of Swampscott. It appears that the inhabitants of the town, at the annual town meeting in March, 1906, which was called for many purposes, and among others to hear and act upon the reports of numerous town officers, including the report of the board of health, appointed a committee of five voters to investigate the doings of the board of health for the three municipal years then ending, with authority to call for persons, books and papers, and to employ counsel and a stenographer. At an adjourned meeting this committee made a report, with charges against the board of health, which was accepted and adopted. At this meeting another committee was appointed to hear evidence upon the charges against the board, and to report their findings of fact and recommendations at an adjourned town meeting. This committee was authorized to employ counsel and engage a stenographer, and was empowered to summon witnesses, and call for an inspection of public records and private documents and papers. The committee made a report at an adjourned meeting, finding the charges proved, and recommending the adoption of resolutions removing the respondents from their respective offices as members of the board of health, for maladministration and misfeasance in office. The report was accepted and adopted, and resolutions were adopted in accordance with its recommendations. The respondents did not recognize the authority of either of these committees, and did not appear before them, although each of the committees met the respondents at their office, and interrogated them in regard to their books, records, and memoranda, which were there inspected.

The respondents also offered to show, at the hearing upon the information, that the committees were affected by bias and prejudice against them, such that their proceedings were not fairly conducted, and that the attempted removal of the respondents from their office was illegal by reason of other specified irregularities in connection with the meeting at which the vote of removal was passed. This offer of proof was rejected by the court. The petition was ordered dismissed, and the case was reported to this court. The presiding justice made a memorandum of his findings and rulings as follows: ‘The members of the board of health are public agents invested with great public powers. Their term of office is prescribed by the Legislature. Each member holds his office for three years from the day following the meeting at which he is elected, and until another is chosen and qualified in his stead. Rev. Laws, c. 11, § 338. I rule, as matter of law, that the power to shorten this term, even for misconduct, official or otherwise, is not vested in the voters of the town in town meeting assembled, and having so ruled, order this petition to be dismissed.’

The question whether this ruling was correct is the only question presented in terms by the report. Although the general language of the reservation may be broad enough to authorize a dismissal of the petition on the ground that the vote of removal was void, because there was no article in the warrant which gave notice to the voters that such a subject was to be acted upon at the meeting (see Wood v. Quincy, 11 Cush. 487-495;Matthews v. Westborough, 131 Mass. 521), we think it better not to dispose of the case on this ground, inasmuch as the term of office of neither of the respondents has yet expired. The three terms for which they were respectively elected will end in March, 1907, March, 1908, and March 1909. The question expressly reserved has been fully argued, and if not decided in this case, it may arise in subsequent proceedings against these respondents for the causes now existing.

It is contended by the informant that, at the common law, municipal corporations have an inherent power of a motion of their officers for misconduct. This rule has been laid down in cases relating to certain municipal corporations in England. Rex v. Richardson, 1 Burr. 517; Lord Bruce's Case, 2 Str. 819; Regina v. Bailiffs, 2 Lord Raymond, 1233; Imperial, etc., Co., Blackfool v. Hampson, 23 Ch. D. 1, 7. In this country the subject is generally regulated by legislation, although there are cases in which the above rule has been stated as applying to officers of municipal corporations, in the absence of statutory provision touching the subject. State v. Jersey City, 25 N. J. Law, 539; Richards v. Clarksburg, 30 W. Va. 491, 4 S. E. 774;Ellison v. Raleigh, 89 N. C. 125;Mayor of Savannah v. Grayson, 104 Ga. 105, 30 S. E. 693;State v. City Council of New Orleans, 107 La. 632, 32 South. 22. In other cases relating to corporations aggregate, not municipal, but having authority for their own government, the rule has been stated in general terms, although the decisions well might have been put on the ground of an original implied authority, given by the statute creating the corporations. See Fawcett v. Charles, 13 Wend. (N. Y.) 476;People ex rel. v. Chicago Board of Trade, 45 Ill. 114. Whatever the rule may be in reference to municipal corporations in other parts of the country, we are of opinion that, in the cities and towns of Massachusetts, there is no power to remove public officers except that which is given by the statutes. The difference between municipal corporations in England and towns in New England has been recognized in many cases. The former often have many prescriptive rights, as well as special powers expressly or impliedly given in their charters, while the latter have only the powers conferred by statutes. In Stetson v. Kempton, 13 Mass. 272-278,7 Am. Dec. 145, Chief Justice Parker, referring to towns said: ‘Their corporate powers depend upon legislative charter or grant, or upon prescription where they may have exercised the powers anciently, without an particular act of incorporation. But in all cases the powers of towns are defined by the St. 1785, p....