Attorney Gen. v. Loomis

Decision Date03 January 1917
Citation225 Mass. 372,114 N.E. 676
PartiesATTORNEY GENERAL v. LOOMIS.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Reserved from Supreme Judicial Court, Suffolk County.

Information in the nature of quo warranto by Henry C. Attwill, Attorney General, on the relation of Frederick W. McGowan against Charles H. Loomis, city clerk. At the request of both parties, the case was reserved for the full court. Judgment of ouster.

Frank W. Kaan, of Boston, for petitioner.

Wm. J. Miller and Geo. C. Scott, both of Boston, for respondent.

RUGG, C. J.

This is an information in the nature of a quo warranto requiring the respondent to show by what title he holds the office of city clerk of the city of Medford. The case comes before us by reservation on information and answer. All the allegations of material facts not traversed by either party must be assumed to be true.

Prior to the first Monday of January, 1904, the city of Medford had accepted St. 1901, c. 332, now R. L. c. 26, § 15. That statute established the term of office for the city clerk in all cities which accepted its provisions. That term, so far as applicable to the city of Medford (which never has elected a city clerk in December), was in these words:

‘In the year nineteen hundred and two, and in every third year thereafter * * * a city clerk shall be elected or appointed, as required by the charter of said city, for a term of three years from the date of his election or appointment. * * * Such clerk shall hold his office until the election or appointment and qualification of his successor, unless sooner removed by due process of law. A person who is appointed to fill a vacancy in the office of city clerk shall hold * * * office until the end of the unexpired term of the person who last held the office.’

As matter of construction, that section, if it has continued applicable, means that a city clerk ought to be elected in Medford in 1902, and every third year thereafter, viz., in 1905, 1908, 1911, 1914 and 1917.

R. L. c. 26, § 15, was in effect in Medford when St. 1903, c. 345, which was the revised charter of the city of Medford, took full effect on the first Monday in January, 1904. The only provisions of that charter relating directly or indirectly to the office of city clerk are found in sections 10, 53 and 56. Section 10, so far as concerns city clerk, is in these words:

‘* * * The board of aldermen shall elect, according to law, a city clerk, who shall hold office for the term of his election and until his successor is elected and qualified. * * * In case of a vacancy in the office the same shall be filled by the board of aldermen. * * *’

That section does not fix any term for the office of city clerk. It simply provides that the person elected ‘shall hold office for the term of his election.’ If that section stood alone, it would be necessary to look to the general law to ascertain the term of office of city clerk, and the term of his office would be governed by R. L. c. 26, § 15, above quoted.

Section 53 of the charter is in these words:

‘All persons holding office in said city at the time when this act takes effect * * * shall continue to hold such offices until the organization of the city government as hereby authorized shall be effected and until their respective successors shall be chosen and qualified.’

Manifestly that section fixes no term for any office. It simply defines the end of the period of service for those holding city offices at the time the city charter takes effect.

Section 56 of the charter is in these words:

‘All general laws in force in the city of Medford when this act is accepted as herein provided, and all special laws heretofore passed with reference to the town or city of Medford, which shall have been duly accepted by said town or city, and which shall then be in force, shall, until altered, amended or repealed, continue in force in the city of Medford.’

Clearly this section establishes no term for any affice except that it incorporates by necessary implication the term of office of city clerk as fixed by St. 1901, c. 332, now R. L. c. 26, § 15, for the reason that that statute was one of the general laws which had ‘been duly accepted by said * * * city.’

The conclusion seems to us irresistible that, throughout the period under review, R. L. c. 26, § 15, governs the term of office of city clerk in Medford. The effect of section 53 of the charter was simply to provide that when it went into effect, namely, on the first Monday of January, 1904, all the offices should become vacant and that the newly organized city government should have the power to elect new officers, including a city clerk. But, so far as the city clerk is concerned, no provision is made for any change in his term of office. Such a sweep out of office wrought by the express terms of the city charter is an instance of the clerk being ‘sooner removed by due process of law’ within the meaning of those words in R. L. c. 26, § 15. But the effect of the new city charter was not to abolish the office of city clerk or to change...

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13 cases
  • Moore v. Election Comm'rs of Cambridge
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 23, 1941
    ...of fact in the answer, a finding of facts by the court would have been largely, if not wholly, perfunctory. CompareAttorney General v. Loomis, 225 Mass. 372, 373, 114 N.E. 676. And there is not in form an ‘agreement as to all the material facts,’ although there is in substance an agreement ......
  • City of Lawrence v. MacDonald
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 14, 1945
    ...warranto to oust him from the office, see G.L. (Ter.Ed.) c. 249, § 12; Commonwealth v. Allen, 128 Mass. 308, 311;Attorney General v. Loomis, 225 Mass. 372, 376, 114 N.E. 676;Brierley v. Walsh, 299 Mass. 292, 294, 295, 12 N.E.2d 827; compare Commonwealth v. Fowler, 10 Mass. 290, with Fowler ......
  • Moore v. Election Com'rs of Cambridge
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 23, 1941
    ...... largely, if not wholly, perfunctory. Compare Attorney. General v. Loomis, 225 Mass. 372 , 373. And there is not. in form an "agreement as to all the ......
  • Bell v. Treasurer of Cambridge
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • December 31, 1941
    ...quo warranto brought by the Attorney General against the incumbent. Doherty v. Buchanan, 173 Mass. 338, 53 N.E. 878;Attorney General v. Loomis, 225 Mass. 372, 114 N.E. 676;Sevigny v. Russell, 260 Mass. 294, 157 N.E. 601. The mere fact that the respondent contends that compensation is due hi......
  • Request a trial to view additional results

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