City Manager of Medford v. Civil Service Com'n

• Decision Date: 29 October 1952
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: CITY MANAGER OF MEDFORD v. CIVIL SERVICE COMMISSION et al.

Page 526

108 N.E.2d 526

329 Mass. 323

CITY MANAGER OF MEDFORD v. CIVIL SERVICE COMMISSION et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 10, 1952.

Decided Oct. 29, 1952.

Mark E. Gallagher, Jr., City Sol., B. P. Howes, Boston, for plaintiff.

James W. Kelleher, James McCaffrey, Boston, John S. Ahern, Medford, for defendants Catino and others.

Charles H. Walters, Asst. Atty. Gen., for defendants Civil Service Commission and another.

Before QUA, C. J., and RONAN, WILKINS, SPALDING and COUNIHAN, JJ.

WILKINS, Justice.

The declaratory judgment statute is invoked seeking, in part, that 'an interpretation be made as to the status of the membership of the offices of assessors' of Medford. G.L.(Ter.Ed.) c. 231A, inserted by St.1945, c. 582, § 1. The defendants are the civil service commission, the director of civil service, the commissioner of corporations and taxation, Samuel D. Potts, Alfred Calabrese, and James Connors 'as they constitute the board of assessors of the city of Medford,' and Michael Catino and Curtis S. Leonard, who, with Connors, have been temporarily designated to act as assessors by the defendant commissioner. The defendants other than Connors, Calabrese, and Potts demurred to the bill, and interlocutory decrees were entered overruling the demurrers. The defendants Catino and Leonard appealed. The facts have been agreed, and the case has been reserved and reported without decision. G.L.(Ter.Ed.) c. 214, § 31.

The assessors in Medford are three in number and appointed for three year terms. G.L.(Ter.Ed.) c. 41, § 24, as appearing in St.1951, c. 364. Under its present Plan E charter the appointing authority is the city manager. G.L.(Ter.Ed.) c. 43, § 104, inserted by St.1938, c. 378, § 15. Prior to March 19, 1952, Connors, Calabrese, and Potts had been appointed and on that date were serving as the assessors. The present controversy, although of recent origin, stems from the regular city election held on November 6, 1945, when the voters, pursuant to G.L. (Ter.Ed.) c. 31, § 49A, as appearing in St.1941, c. 414, ¹ answered in the affirmative both parts of the following question:

'Question 1. (Part 1). Shall the City of Medford vote that the office of Assessor of Taxes be palced within the classified civil service?

Yes

No

'(Part 2). If it is voted to palce the office of Assessor of Taxes within the classified civil service shall the City of Medford vote to provide for the continuance in said office of Assessor James Connors, the present incumbent thereof, after passing a qualifying examination?

Yes'

No

The referendum appeared upon the ballot as a result of the certification of the registrars of voters that a petition, approved in writing by Connors, had been filed with them in proper form. Connors had served five consecutive years as assessor. When the petition was filed in 1945, Catino and Leonard also were assessors, but had not served five consecutive years, and did not approve the petition in writing. No other similar petition was filed.

On April 30, 1946, the director of civil service certified that Connors had passed a qualifying examination and certified his name. Connors thereafter continued to hold office without reappointment. The proper appointing authorities in the city from time to time made appointments to the other two positions of assessors without any application to the department of civil service and without any request by the department or by the commissioner of corporations and taxation that such application should be made. No objection was raised by any one for nearly six years. Then, on March 19, 1952, the plaintiff city manager received two communications bearing the preceding date. One was from the director of civil service asserting in substance that in the opinion of the civil service commission Potts and Calabrese were illegally occupying the positions of assessor because they had not been appointed in accordance with the civil service laws and rules. Reference was made to 'an informal opinion from the office of the Attorney General, that the vote of the citizens of Medford taken in 1945 in placing the office of assessor within the classified civil service placed all three positions under civil service.' The letter concluded with a direction that the 'employment' of Potts and Calabrese be terminated within fourteen days, and their positions filled after filing a requisition upon the defendant director. The other letter was from the defendant commissioner and read: 'You are hereby advised that because there is no legally constituted board of assessors in Medford, I have this day as commissioner of corporations and taxation named Michael Catino and Curtis S. Leonard to serve as assessors until the civil service commission certifies persons as qualified to serve on the board of assessors in the city of Medford.' On April 16 the defendant commissioner appointed Connors also to act temporarily as assessor. ²

Catino and Leonard have taken an oath of office before the Secretary of the Commonwealth, and have acted as assessors with Connors, who has been elected chairman, and refuses to recognize Calabrese and Potts as assessors. Calabrese and Potts have continued to carry on their duties as assessors, with Potts as chairman.

On March 19 the city manager sent a notice to the various city department heads, including all five persons acting as assessors, in which he took the position that Connors, Calabrese, and Potts were the legal and duly constituted board, and the 'only ones whose acts and doings will be recognized' by the city. This notice stated, 'Any interference with the proper conduct of this board will be dealt with on this basis. It appears that the courts will eventually be requested to resolve the controversy and decide the rights of all concerned.' The crux of the controversy is the interpretation to be given to G.L. (Ter.Ed.) c. 31, § 49A, as appearing in St.1941, c. 414. This section occupies more than two pages in the statute book and comprises more than eleven hundred words without the advantage of any designated subdivisions. It begins: 'Upon the filing with the clerk of a city * * * of a petition conforming to this section, requesting that an office or offices in such city * * * subject to this section and specified in the petition be placed within the classified civil service, the question or questions whether such office or offices shall be placed within said service shall be submitted to the registered voters of such city' at an election. 'No petition under this section shall be received for filing unless it is signed by registered voters' of a prescribed number, 'nor unless it bears the approval in writing of the incumbent or incumbents, at the time of the filing of the petition, of the office or offices specified therein.' The question or questions shall be printed upon the official ballot 'in substantially the following form:

'Question 1. (Part 1) Shall the city (or town) vote that the office of (title of office) be placed within the classified civil service? Yes ..... No ......

'(Part 2) If it is voted to place the office of (title of office) within the classified civil service, shall the city (or town) vote to provide for the continuance in said office of (name of incumbent), the present incumbent thereof, after passing a qualifying examination? Yes ..... No ......'

Other material provisions are: 'There shall be a separate numbered question for each office sought to be placed within the classified civil service under this section.' ³ 'This section shall apply to any municipal office the incumbent of which shall have served therein continuously for not less than five years ⁴ immediately prior to the filing of the petition relative thereto * * *.'

The effect of the voting is contained in the following paragraph: 'The office specified in Part 1 of each question submitted under this section, in answer to which a majority of the voters voting thereon vote in the affirmative, shall be placed within the classified civil service, and the tenure of office of any incumbent thereof shall be unlimited subject, however, to the provisions of this chapter; provided, that if Part 2 of the question in which said office is specified is so answered in the affirmative the incumbent thereof at the time of the filing of such petition shall, if still the incumbent thereof, be subjected by the division to a non-competitive qualifying examination for such office, and if he passes said examination, he shall be certified for said office and shall be deemed to be permanently appointed thereto without being required to serve any probationary period. If such incumbent does not pass such non-competitive qualifying examination, or if a majority of the voters voting on said Part 2 of the question does not vote thereon in the affirmative, such incumbent may continue to serve in said office, but shall not be subject to this chapter.'

An assessor is a public officer. Hobart v. Commissioner of Corporations & Taxation, 311 Mass. 341, 344, 41 N.E.2d 38. Narrowly stated, the question on the merits is whether the affirmative answer of the voters to Question 1, Part 1, brought under civil service the offices of all three assessors or merely that of Connors. Careful reading of the entire section satisfies us that only the office of which Connors was the incumbent was affected. The section can apply only where the incumbent of the office has served a prescribed number of years. Here only one assessor met that requirement. The machinery for placing the question on the ballot can only be rendered operative by 'the approval in writing of the incumbent or incumbents, at the time of the filing of the petition, of the office or offices specified...