Dodsworth v. Mayor of Medford

• Decision Date: 03 January 1941
• Parties: DODSWORTH v. MAYOR OF MEDFORD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

308 Mass. 62

30 N.E.2d 835

DODSWORTH

v.MAYOR OF MEDFORD.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 3, 1941.

Exceptions from Superior Court, Middlesex County; F. G. Good, Judge.

Mandamus proceeding by Louis J. Dodsworth against the Mayor of Medford, to try the title to the office of purchasing agent of the City of Medford. An order was entered dismissing the petition, and the petitioner brings exceptions.

Exceptions overruled.

J. N. Johnson, of Boston, for petitioner.

G. L. O'Hara, of Boston, for respondent Buckley.

G. E. Constantino, City Sol., of Medford, for respondent Mayor of Medford and the City.

Argued before FIELD, C. J., and DONAHUE, QUA, DOLAN, and RONAN, JJ.

RONAN, Justice.

This is a petition for writ of mandamus to try the title to the office of purchasing agent of the city of Medford. The case was submitted to the judge upon a statement of agreed facts from which it appears that the petitioner was duly appointed purchasing agent on September 7, 1937, for the balance of an unexpired term of three years ending on January 1, 1939, or until his successor was appointed and qualified, in accordance with an ordinance which provides for the appointment to said office by the mayor, subject to confirmation by the board of aldermen, for a term of three years. The respondent Buckley contends that he is the purchasing agent by virtue of his appointment by the mayor and confirmation by the board of aldermen on December 28, 1939. The petitioner excepted to the order dismissing the petition, and to the refusal to grant certain requests for rulings.

The mayor, on December 19, 1939, sent to the board of aldermen a written communication in which he stated: ‘I hereby nominate and appoint subject to the rules of the Board and the ordinances provided, the name Cyril N. Buckley as Purchasing Agent to serve until March 1941 or until his successor is appointed.’ At this time the petitioner was occupying the office after his term had expired on January 1, 1939, and the term then pending would expire on January 1, 1942, and not in March 1941, as stated in the communication of the mayor. The petitioner contends that this appointment was void because it did not correctly state the term for which Buckley could be appointed. The term of this office was fixed by an ordinance and no appointment could be made for a term different from that thereby established. Moreover, the appointment was made subject to the rules of the board of aldermen and to the provisions of the ordinances. To be made in compliance with the ordinances, the term for which the appointment could be made was the term expiring on January 1, 1942. It cannot be presumed that the mayor did not intend to make a valid appointment or that the board of aldermen were not acquainted with the ordinance establishing the term of the office of the purchasing agent. If the words ‘to serve until March 1941’ were omitted, the appointment would be valid for the unexpired term, because it was unnecessary to mention the tenure of office as that was already created by the ordinance. Commonwealth v. Swasey, 133 Mass. 538;Collins v. Schenectady, 256 App.Div. 389, 10 N.Y.S.2d 303. The reference in the mayor's communication to the ordinance makes the case stronger than those cases in which nothing appeared to neutralize or to control the erroneous statement of the tenure of office to which a candidate was seeking election. In such instances it has been held that such an error did not vitiate the election, and we see nothing in the agreed facts that would lead to a different conclusion in reference to this appointment. It was said in an opinion of this court respecting the statement upon a ballot at the head of the block containing the names of the candidates for a particular office, that the term of office was one year instead of stating that it was for three years, that ‘this clerical error concerned an immaterial and subsidiary point and did not affect the substantial factors of the election.’ Parrott v. Plunkett, 268 Mass. 202, 208, 167 N.E. 329, 331;Wheeler v. Carter, 180 Mass. 382, 62 N.E. 471;Attorney General v. Hutchinson, 185 Mass. 85, 69 N.E. 1048. An appointment in which the term was mistakenly stated to be for a term different from that prescribed by law has been held to be an appointment for the legal term, and this, we think, was the term of the appointment of the respondent Buckley. Attorney General v. Loomis, 225 Mass. 372, 114 N.E. 676;Clark v. State ex rel. Graves, 177 Ala. 188, 59 So. 259;Hale v. Bischoff, 53 Kan. 301, 36 P. 752;Stadler v. Detroit, 13 Mich. 346;State v. Corcoran, 206 Mo. 1, 103 S.W. 1044,12 Ann.Cas. 565;People v. Dooley, 171 N.Y. 74, 63 N.E. 815...