Crocker v. Deschenes

• Decision Date: 29 June 1934
• Citation: 191 N.E. 678,287 Mass. 202
• Parties: CROCKER et al. v. DESCHENES et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

287 Mass. 202

191 N.E. 678

CROCKER et al.

v.DESCHENES et al.

Supreme Judicial Court of Massachusetts, Worcester.

June 29, 1934.

Report from Supreme Judicial Court, Worcester County.

Petition by Weyman S. Crocker and others against Louis N. M. Deschenes and others for a writ of mandamus in the Supreme Judicial Court for Worcester county. On report by a single justice of the court.

Petition dismissed.

S. M. Salny, of Fitchburg, for petitioners.

C. B. Rugg. W. B. Farr, and R. Ely, all of Boston, for respondents.

CROSBY, Justice.

This is a petition for mandamus brought to determine the title to office of the licensing board of the city of Fitchburg as between the petitioners and the respondents. The case was reported by a single justice of this court upon the pleadings for the determination of the full court.

The facts alleged in the petition are as follows: On April 3, 1933, Joseph N. Carriere, the mayor of Fitchburg for the years 1932 and 1933, appointed the respondents as members of the licensing board of the city of Fitchburg under the provisions of G. L. c. 138. They have purported to function in such capacity up to the present time. These appointments were not submitted to or confirmed by the city council. There was no licensing board appointed under G. L. (Ter. Ed.) c. 138, § 4, or corresponding previous law, or under the city charter, for several years prior to April 3, 1933, although there was a licensing board functioning through the year 1925. On December 2, 1924, the city at an annual election had voted to authorize the granting of licenses for the sale of certain non-intoxicating beverages in accordance with the provisions of law relative thereto. On June 13, 1933, at a special election the voters of the city voted in favor of permitting the granting of licenses for the sale of wines and malt beverages, the vote having been held in accordance with the provisions of St. 1933, c. 120, §§ 18 and 19. Prior to the taking of that vote there had not been any vote since December 2, 1924, on the question whether or not licenses should be granted for the sale of certain non-intoxicating beverages. On December 9, 1933, the mayor, Joseph N. Carriere, filed with the city clerk an order, in the form required by St. 1933 (Ex. Sess.) c. 373, § 2, authorizing the granting of licenses for the sale of intoxicating beverages, and the sale of such beverages in the city of Fitchburg.

At the regular municipal election held on November 8, 1933, Robert E. Greenwood was elected mayor of the city. He assumed the duties of office on January 2, 1934. In his capacity as mayor under date of January 2, 1934, he notified the respondents to desist and refrain from granting any further licenses, or from acting or purporting to act as the licensing board of the city. On the same date he appointed the petitioners as members of the licensing board. These appointments were rejected by the city council on January 16, 1934. On February 6, 1934, he resubmitted the appointments and they were confirmed on that date. On February 7, 1934, the petitioners purported to qualify as members of the licensing board of the city by taking the oath of office, and they have purported to function in such capacity up to the present time. The petitioners and the respondents were duly qualified for appointment in so far as the provisions of G. L. (Ter. Ed.) c. 138, § 4, are concerned. The city of Fitchburg operates under plan B form of government specified in G. L. (Ter. Ed.) c. 43, §§ 1 to 45, inclusive and sections 56 to 63, inclusive. Prior to the adoption of the present charter which was accepted at the regular state election held on November 7, 1916, the city operated under a special charter, St. 1872, § 81.

The only question here presented is whether the appointment of a licensing board by the mayor requires for its validity the confirmation of the city council. G. L. (Ter. Ed.) c. 138, § 4, provides in part: ‘In each city which is not exempt by the provisions of section ten there shall be a licensing board appointed by the mayor, consisting of three persons, who shall not be engaged, directly or indirectly, in the manufacture or sale of intoxicating liquors or of certain non-intoxicating beverages, who have been residents of the city in which they are appointed for at least two years immediately preceding their appointment, and who shall not hold any other public office except that of notary public and justice of the peace. * * *’ Section 10 provides: ‘The following cities shall be exempt from the operation of the six preceding sections: First, Cities having a licensing board created by special statute or under the provisions of a charter. Second, Cities which have not at any annual city election before this chapter takes effect voted to authorize the granting of licenses for the sale of certain non-intoxicating beverages; but if any such city hereafter, at an annual city election, votes to authorize the granting of such licenses, a board shall, thereupon, in the February following, be appointed for such city as above provided, and the provisions of the six preceding sections shall thereafter apply to said city.’ G. L. (Ter. Ed.) c. 43, § 60, provides, in part: ‘Upon the adoption of Plan B, all heads of departments and members of municipal boards, except the school committee, officials appointed by the governor, and assessors if elected by the people, as their terms of office expire, shall be appointed by the mayor, subject to confirmation by the city council; but the city solicitor shall be appointed, and may be removed, by the mayor, without confirmation by the city council.’ G. L. (Ter. Ed.) c. 43, § 11, provides in part, ‘If a majority of the total number of votes cast at a regular state election for and against the adoption of one of the plans of governmentprovided for in this chapter shall be in favor of its adoption, this chapter, so far as applicable to the form of government under the plan adopted by the city, shall supersede the provisions of its charter and of the general and special laws relating thereto and inconsistent herewith. * * *’

It is the contention of the respondents that they were appointed by the mayor of the city under G. L. (Ter. Ed.) c. 138, § 4; that that section contains no provision requiring confirmation of appointments by a city council, and that a licensing board appointed under G. L. (Ter. Ed.) c. 138, § 4, is not a ‘municipal board’ within the meaning of section 60 of the charter of the city of Fitchburg so that confirmation by the city council of appointments by the mayor to that board is required. The petitioners, on the other hand, contend that a licensing board is a ‘municipal board’ within the meaning of G. L. (Ter. Ed.) c. 43, § 60, and that the appointment of a licensing board under G. L. (Ter. Ed.) c. 138, § 4, requires confirmation in cities operating under a plan B charter.

Originally, under our statutes, confirmation by the city council of appointments made by the mayor to the licensing board was required. St. 1875, c. 99, § 4, gave authority to the mayor and aldermen of cities or the selectmen of towns to grant licenses for the sale of intoxicating liquor. By section 20 or that act the powers and duties given to, and imposed upon, the mayor and aldermen of cities by section 4 may be exercised in any city by a board of license commissioners, if the city council should so determine, such board to consist of three inhabitants of the city ‘to be appointed by the mayor and confirmed by the city council thereof. * * *’ Likewise under Pub. St. 1882, c. 100, § 28, the powers given to and imposed upon the mayor and aldermen of cities by section 5 might, in any city except Boston, be exercised by a board of license commissioners, if the city council so determined, such board to consist of three inhabitants of the city ‘to be appointed by the mayor and confirmed by the city council thereof. * * *’ This requirement of confirmation was omitted in St. 1894, c. 428, which provided in section 1, in part, that ‘In each city of the Commonwealth, except the cities exempted by the provisions of section ten of this act, there shall be a board of license commissioners, to be appointed by the mayor of such city. Each such board shall consist of three persons, who shall have been residents of the city in which they are appointed for at least two years immediately preceding such appointment, and who shall not be engaged directly or indirectly in the manufacture or sale of intoxicating liquors, and who shall not hold any other public office.’ Section 4 provides, in part, that such boards shall exercise the powers and perform the duties given to and imposed upon the mayor and aldermen of cities by chapter 100 of the Public Statutes. Section 10 excepts from the operation of the act, first, all cities in which there is a license commission or board of police created by special statute or under the provisions of a charter; and second, all cities which at their last annual municipal election prior to the passage of the act did not vote to authorize the granting of licenses for the sale of intoxicating liquors, but provided that if any such city at any subsequent annual municipal election voted to authorize the granting of such licenses, a board should be appointed as therein provided. The requirement of confirmation existing before St. 1894, c. 428, and omitted in that act, has...