Donahue v. Selectmen of Saugus
| Citation | 343 Mass. 93,176 N.E.2d 34 |
| Parties | William DONAHUE and others v. SELECTMEN OF SAUGUS. |
| Decision Date | 26 June 1961 |
| Court | United States State Supreme Judicial Court of Massachusetts |
John F. Dunn (Oliver O. Ward, Melrose, and Frederick B. Willis, Boston, with him), for the petitioners.
John M. Fogarty, Lynn (C. Carroll Cunningham, Boston, with him), for the respondents.
Before WILKINS, C. J., and SPALDING, WILLIAMS, CUTTER and KIRK, JJ.
This petition for a writ of mandamus asks that the respondent board of selectmen of the town of Saugus be required to order a recall election with respect to three of its members. We assume that the five petitioners are residents and voters of the town, although no description of them is to be found in the petition or elsewhere in the record. The single justice made findings and rulings, ordered the writ to issue subject to a determination of the full court of the correctness of the rulings, and reserved and reported the case. G.L. c. 211, § 6; c. 213, § 1B; c. 231, § 111.
Saugus has accepted a town manager form of government. St.1947, c. 17, as amended. There is a board of five selectmen chosen for two year terms. Id. § 2 as amended by St.1951, c. 79, § 1. Holders of elective office other than town meeting members may be recalled (§ 42). 'Any ten registered voters of the town may file with the town clerk an affidavit containing the name of the officer sought to be recalled and a statement of the grounds for recall.' The town clerk is to issue 'petition blanks' which 'shall be dated, shall be addressed to the selectmen, and shall contain the names of the ten persons to whom they are issued, the name of the person whose recall is sought, the grounds of recall as stated in the affidavit, and shall demand the election of a successor in the said office.' The petition is to be filed with the town clerk within twenty days after the filing of the affidavit and shall be signed by at least twenty per cent of the registered voters. The petition is to be submitted by the town clerk to the registrars of voters for certification forthwith (§ 43). 'If the petition shall be found and certified by the town clerk to be sufficient, he shall submit the same with his certificate to the selectmen without delay, and the selectmen shall forthwith give written notice of the receipt of the certificate to the officer sought to be recalled, and shall, if the officer does not resign within five days thereafter, thereupon order an election to be held on a Tuesday fixed by them not less than twenty-five nor more than thirty-five days after the date of the town clerk's certificate that a sufficient petition is filed; provided, however, that if any other town election is to occur within sixty days after the date of the certificate, the selectmen shall postpone the holding of the recall election to the date of such other election. * * *' (§ 44).
The single justice ruled that the statutory requirements were met for an election for the recall of three selectmen, the respondents Ludwig, Rice, and Gustafson, on the ground, 'Voting to award an all-alcoholic beverage goods license detrimental to the best interests of the town and its citizens and in direct opposition to the expressed desires of the people living in the area where said license was granted.' The three selectmen did not resign. A motion to order an election to be held on Tuesday, June 13, 1961, was defeated, the three selectmen affected voting in the negative, and the other two in the affirmative.
In defense of the refusal to execute what is to us the clear mandate of the recall provisions, the respondent board argues that the 'statement of the grounds for recall' is not sufficient. It urges that 'grounds' means 'substantial grounds' involving 'some wrong or serious impropriety.' Here the question arises out of the manner of performance of one of the duties of the office of selectman. This is the only ground we need notice, and upon the face of the affidavit it is sufficient. That the courts should conduct hearings and go behind the statement is not contemplated by § 43. This is clear from the direct wording of that section as well as from the stringent requirement of § 44 that there be a prompt recall election.
We state, parenthetically, that were we to look behind the statement of grounds, the present record contains nothing which would benefit the respondent board. The function of the affidavit 1 is not to restrict the meaning of the unqualified word 'grounds' but is to start in motion the recall procedure. The petition blanks, as prescribed in § 43, contained the...
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