Cunningham v. Mayor of Cambridge
| Decision Date | 09 February 1916 |
| Citation | 222 Mass. 574 |
| Parties | HENRY J. CUNNINGHAM v. MAYOR OF CAMBRIDGE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
January 26, 1916.
Present: RUGG, C.
J., DE COURCY CROSBY, PIERCE, & CARROLL, JJ.
Constitutional Law. Municipal Corporations. Cambridge. Commissioner of Public Safety. Mandamus. Words, "Officers."
St. 1915, c.
267, entitled "An Act to simplify the revision of city charters," which establishes four plans for the government of cities and provides that any city, except Boston, may adopt any one of the four plans at an election held in the manner prescribed by the statute without further legislative intervention, is constitutional.
The commissioner of public safety of the city of Cambridge who was appointed under St. 1912, c. 611, cannot since the adoption by that city of Plan B of St. 1915, c. 267, be removed by the mayor under Section 2 of the first named statute, which no longer is in force in this regard, and only can be removed in the manner provided by St. 1915, c. 267, Part
III, Section 6, for the removal of such an officer, that is, by the mayor with the approval of a majority of the members of the city council.
The provision contained in St. 1915, c. 267, Part I, Section 5, that "Until superseded under the provisions of this act, the organization of the executive and administrative departments and the powers and duties of the officers and employees of any city adopting any of the plans provided for in this act and the fiscal year of such city shall remain as constituted at the time of the adoption of such plan," does not mean that the definite and general provision as to removals from office under Plan B contained in Part III,
Section 6, of the same statute shall remain inoperative either indefinitely or until the terms of office of all those subject to the power of removal shall have been terminated in one of the ways existent at the time of their appointment. In the provision contained in St. 1915, c. 267, Part I, Section 11, that
"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 government provided for in this act shall be in favor of its adoption, the provisions of this act, 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, but not, however, until officers provided for under such plan shall have been duly elected and their terms of office shall have begun," the word "officers" refers only to elective officers, and does not include the commissioner of public safety of the city of
Cambridge appointed under St. 1912, c. 611, who, since the adoption by that city of Plan B, by the provision quoted is made subject to removal in the manner provided in the superseding statute.
A petition for a writ of mandamus is a proper remedy for the commissioner of public safety of the city of Cambridge appointed under St. 1912, c.
611, as the head of the police and fire departments of the city consolidated by that statute, seeking an order to the mayor of that city commanding him to desist from removing the petitioner from office without the approval of a majority of the members of the city council.
PETITION, filed on January 5, 1916, for a writ of mandamus as described in the opinion.
The case came on to be heard upon the pleadings and agreed facts before De Courcy, J., who, at the request of the parties, reported it for determination by the full court.
J. F. O'Connell, for the petitioner. J. F. Aylward, for the respondent.
The petitioner, who is the commissioner of public safety of the city of Cambridge, seeks by this petition for a writ of mandamus to compel the respondent, who is the mayor of the same city, to refrain from attempting to remove him from his office. The petitioner was appointed for a term not yet expired, under the authority of St. 1912, c. 611, by Section 2 of which the mayor was empowered to "remove the commissioner for cause, after a hearing." The respondent is undertaking to make the removal by virtue of the supposed authority of that act. At the State election in 1915, the voters of Cambridge accepted Plan B of St. 1915, c. 267. That statute, which is entitled "An Act to simplify the revision of city charters," in effect provides a new charter for such cities as adopt it, according to the form for which a majority of the votes are cast at a regular election.
St. 1915, c.
267, is an innovation in legislation in this Commonwealth. Heretofore, the General Court has enacted a special act whenever the frame of government of a city was to be changed, applicable to that city alone. By c. 267 it has established four different types of city charter and provided machinery by which any city in the Commonwealth, except Boston, may select for itself the form which its voters decide to be best adapted to its needs, and, after a trial of not less than four years, may change to some other of the four types set out in the statute, all without further legislative action.
By St. 1892, c. 377, the Legislature attempted to frame a model charter, with alternatives as to a city council composed of one or two chambers, and as to a term of office of one or two years for the mayor and the members of a unicameral city council, to be adopted at will by towns of twelve thousand inhabitants or more, whose voters desired the city rather than the town form of government. This statute was held unconstitutional in Larcom v. Olin, 160 Mass. 102 , for reasons there set forth at length. In brief, the ground was that art. 2 of the Amendments to the Constitution plainly contemplated that the question, whether any municipality should make the initial change from a town to a city form of government, must be decided in each instance as it arose upon petition by the majority of the inhabitants of the town, by the General Court itself, and the particular terms of each city charter which marked that transformation should receive the careful attention of the legislative department of government. This intent of the people in adopting the second amendment to the Constitution doubtless had its foundation in deep-seated regard for the town meeting form of government and a thorough appreciation of the significance of discarding it for administration of local affairs through the city form of government.
Those considerations have no relevancy to the modifications from time to time of the form of city charter when once the transmutation from town to city has been made. City charters, when once accepted, have been amended by the Legislature without request or approval by the inhabitants. 160 Mass. 104. Many laws somewhat general in their scope provide that they shall take effect in any particular municipality only when accepted by the voters at an election, or when adopted by the city council. The constitutionality of these acts cannot be doubted. They are numerous. Prince v. Crocker, 166 Mass. 347, 360; Cole v. Tucker, 164 Mass. 486 , 489; Graham v. Roberts, 200 Mass. 152, 157; Barnes v. Mayor of Chicopee, 213 Mass. 1 , 4.
The instant statute, although more comprehensive as to the administration of municipal affairs than most others, falls within the same principle. It is something of a reversion to the earlier freedom and flexibility of local self-government, which obtained when the town meeting was at its highest development. It is not beyond the power vested by the Constitution in the General Court, to establish several models for the government of cities, and to provide that one or another of these may become operative in any city (with the exception of Boston), already chartered, by the voters at an election held in due form, without further legislative intervention.
The precise question remaining to be decided is, whether the removal from office of the commissioner of public safety in Cambridge is governed by St. 1912, c. 611, or by St. 1915, c. 267, Part III, Section 6. It is plain...
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