Coleman v. Louison
| Decision Date | 09 December 1936 |
| Citation | 5 N.E.2d 46,296 Mass. 210 |
| Parties | COLEMAN v. LOUISON et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Case Reserved and Report from Supreme Judicial Court, Bristol County.
Mandamus proceeding by L. Vincent Coleman against Israel Louison and others to test named respondent's title to office as member of the Taunton City Licensing Board. On reservation and report of a single justice.
Petition dismissed.
F. E Knowles, V. J. Deponte, Jr., and F. J. Tummon, all of Taunton, for petitioner.
H. S R. Buffinton and R. C. Westgate, both of Fall River, for respondents.
This is a petition for a writ of mandamus to test the title of the respondent Louison to office as member of the licensing board of the city of Taunton. Putnam v. Langley, 133 Mass 204, 206; Parrott v. Plunkett, 268 Mass. 202, 205, 167 N.E. 329; Kaplan v. Sullivan, 290 Mass. 67, 194 N.E. 721. The case has been heard on the pleadings and an agreed statement of facts by a single justice. He declined to dismiss the petition as matter of discretion and reported the case for determination by the full court.
The petitioner had been duly appointed a member of the licensing board for a term ending on the first Monday of June, 1936. The term of office of the members of that board is that ‘ All members shall hold office until their respective successors are qualified.’ St.1933, Ex.Sess., c. 376, § 5. The issue to be decided is whether the respondent Louison was appointed and qualified as the successor of the petitioner. By St.1933, Ex.Sess., c. 376, § 4, St.1934, c. 385, § 2, the members of the licensing board in cities having the form of government in effect in Taunton are appointed by the mayor subject to confirmation by the municipal council. On May 5, 1936, at a regular meeting of the municipal council, the mayor appointed the respondent Louison a member of the licensing board for the term six years beginning on the first Monday of June, 1936, to succeed the petitioner. The records of the municipal council for May 5, 1936, show that this appointment was confirmed by vote of the council.
The validity of this confirmation is assailed. The facts and statutes pertinent in that connection are these: The municipal council consists of thirteen members. At the meeting on May 5, 1936, twelve members were present. It was moved and seconded that the appointment of Louison be confirmed. The mayor, who was the presiding officer of the council, declared that the appointment was confirmed. On the following day Louison was sworn as member of the licensing board. It is provided by St.1934, c. 253, § 3, amending the city charter of Taunton, as follows: Rules and orders of the municipal council provide that the mayor shall preside and ‘ shall declare all votes'; that no ‘ rule or order of the council shall be suspended unless two-thirds of the members present consent thereto’ ; that ‘ confirmation of the appointment of the chief of police and city solicitor may be, and all other appointments shall be, deferred until the next regular meeting of the council, after said appointments are made.’ At the next regular meeting of the council after May 5, 1936, which was held on May 12, 1936, when the question of the approval of the records of the last meeting came up, it was moved that the record be approved with the exception of that part which recorded that the council had approved the appointment of Louison as license commissioner, because there seemed to be a difference of opinion relative to the confirmation of the appointment, which should have laid on the table for one week unless the rules had been suspended by a two-thirds vote. That motion was carried by a vote of twelve councilmen. Motion then was made to expunge from the record of the meeting of May 5, 1636, the part which recorded that the council had voted to confirm the appointment of Louison as member of the licensing board. The mayor ruled this motion out of order, but an appeal from that ruling was sustained by a vote of twelve members of the council. On a motion that the appointment of Louison be taken from the table, the mayor ruled the motion out of order. The appeal from this ruling was sustained. A motion was then made that the appointment of Louison be not confirmed, and the council so voted.
The record of the meeting of May 5 is silent on the subject of suspending the rule requiring that the confirmation of the appointment be deferred until the next regular meeting. It does not show that the rule was expressly waived or that two thirds of the members present expressly consented to any waiver. On the other hand, it does not show that any objection was made at the time to a vote on confirmation of the appointment. No contention is now put forward that any such objection was then interposed. There are numerous decisions to the effect that a municipal council and other deliberative bodies may waive or suspended rules designed to guard against hasty action. Bennett v. New Bedford, 110 Mass. 433, 437, 438; Holt v. City Council of Somerville, 127 Mass. 408, 411; Chandler v Lawrence, 128 Mass. 213; Sinclair v. Mayor of Fall River, 198 Mass. 248, 255, 84 N.E. 453; Byfield v. Newton, 247 Mass. 46, 55, 141 N.E. 658. In all these cases it does not appear that there was an express waiver or suspension, but one was inferable from action in violation of such rules, even though there was no formal vote to that effect. State v. Pinkerman, 63 Conn. 176, 191, 28 A. 110,22 L.R.A. 653. It is not necessary to determine whether there could be such suspension in the face of immediate objection and opposition. The action of the municipal council in the case at bar, in proceeding to act at once on the appointment, indicates unanimous consent to waive compliance with the rule to defer consideration until the next meeting. Pevey v. Aylward, 205 Mass. 102, 107, 91 N.E. 315; Commonwealth v. Mayor, etc., of Lancaster, 5 Watts (Pa.) 152. The rule having been suspended or waived, the matter would not be available for further consideration at the next meeting. ...
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