Damon v. Walsh

• Decision Date: 11 March 1907
• Citation: 195 Mass. 72,80 N.E. 644
• Parties: DAMON v. WALSH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

195 Mass. 72

80 N.E. 644

DAMON v. WALSH et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 11, 1907

COUNSEL

Edward W Blodgett and Hugh D. McLellan, for petitioner.

Sidney A. Phillips and Powers & Hall, for respondents.

OPINION

KNOWLTON C.J.

This is a petition for a writ of mandamus to compel the selectmen of Framingham to call a meeting of their members, for the purpose of appointing a committee of 15 persons to examine proposed appropriations and to report the facts relating to them, with their recommendations thereon, in accordance with a vote of the town, passed March 11, 1902, making it the duty of the selectmen to appoint such a committee before the 1st day of April in each year. Two of the three selectmen without the presence of the third, held a meeting for this purpose on March 31, 1906, and assumed to appoint such a committee. The petitioner also prays that the writ may command the persons appointed to refrain from official action under the appointment. The petitioner is the member of the board of selectmen who was absent from the meeting referred to. The meeting was held on Saturday evening, and not until about the middle of that day had the holding of it been contemplated. At that time the petitioner was in Boston, and in the afternoon, when the other members of the board first attempted to give him notice of the meeting, they found it impossible to reach him, and so in the evening determined to go on without him. The justice who heard the case ruled, upon the facts found by him, that the meeting of the selectmen on that evening was not legal, and that the appointment of the other respondents as members of the committee was invalid. He held that the petitioner might be allowed to have a writ of mandamus as prayed for, and the zespondents excepted.

So far as the issuing of such a writ is a matter of discretion, the bill of exceptions brings no question to this court. The only question before us is whether the ruling that the meeting of the selectmen was illegal and the appointment of the committee invalid was erroneous.

The selectmen are public officers who are to act together as a board. Ordinarily they cannot act legally without a meeting of all the members, or a reasonable notice to all, such as to give every member, if he pays proper attention to his public duties, an opportunity to be present with the others and participate in the business before the board. Sometimes the kind of notice to be given is prescribed by by-laws or otherwise, and sometimes it is left to the reasonable determination of the officer giving the notice. In the present case no rules or by-laws had been adopted, and there is no statute that prescribes the method of giving notice.

Assuming for the moment that the board could not appoint a committee without taking reasonable measures to give all of their members an opportunity to be present and take part in the appointment, the judge was right in finding that no sufficient notice was given. There was no emergency that called for immediate action by the board, although the vote of the town directed the appointment of the committee to be made before the 1st day of April, and the two selectmen thought it must be made not...