Cunningham v. Rockwood

• Decision Date: 10 February 1916
• Citation: 222 Mass. 574,111 N.E. 409
• Parties: CUNNINGHAM, Com'r of Public Safety, v. ROCKWOOD, Mayor.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

222 Mass. 574

111 N.E. 409

CUNNINGHAM, Com'r of Public Safety,

v.ROCKWOOD, Mayor.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 10, 1916.

Mandamus by one Cunningham, Commissioner of Public Safety of the City of Cambridge, to compel one Rockwood, Mayor, to refrain from attempting to remove petitioner from his office. Writ to issue.

J. F. O'Connell, J. E. O'Connell, and D. T. O'Connell, all of Boston, for petitioner.

James F. Aylward, of Boston, for respondent.

RUGG, C. J.

The petitioner, commissioner of public safety of the city of Cambridge, seeks by this petition for a writ of mandamus to compel the respondent, 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 the majority 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 chapter 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 12,000 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, 35 N. E. 113, for reasons there set forth at length. In brief, the ground was that article 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. Larcom v. Olin, 160 Mass. 104, 35 N. E. 113. 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, 44 N. E. 446,32 L. R. A. 610;Cole v. Tucker, 164 Mass. 486, 489, 41 N. E. 681,29 L. R. A. 668;Graham v. Roberts, 200 Mass. 152, 157, 85 N. E. 1009;Barnes v. Mayor of Chicopee, 213 Mass. 1, 4, 99 N. E. 464.

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 estanblish 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, pt. 3, § 6. It is plain that the former statute is abrogated in this respect and that the latter statute is controlling.

Whenever one of the plans set forth in St. 1915, c. 267, is adopted by the voters of any city, it becomes effective as a new charter for municipal administration. All that has gone before is abrogated except as preserved by the new charter.

The adoption by the voters of one of the four plans of city charter specified in St. 1915, c. 267, is the equivalent of a new charter specially enacted by the Legislature for the adopting city. Each of the several forms of charter set forth in the act is intended to be complete in itself. While there are numerous common sections operative, whichever plan may be selected, the differences between the several plans are vital and each constitutes a distinct and well understood type of municipal government. In construing such a instrument, when adopted by any given city, with reference to special statutes theretofore enacted as to such city, it must be assumed that the new charter is intended to be exclusive in its field, and that earlier acts, so far as inconsistent with its terms, are deemed to be repealed. That design is expressed in unmistakable words in part 1, § 11, where it is provided that the plan adopted shall ‘supersede the provisions of its charter and of the general and special laws relating thereto and inconsistent herewith.’ Under these circumstances as to the matter here in question there is no room for the application of the principle to which resort sometimes is had to determine whether a general law repeals by implication repugnant...