Fitzgerald v. Selectmen of Braintree

• Decision Date: 19 January 1937
• Citation: 296 Mass. 362,5 N.E.2d 838
• Parties: FITZGERALD v. SELECTMEN OF BRAINTREE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

296 Mass. 362

5 N.E.2d 838

FITZGERALD

v.SELECTMEN OF BRAINTREE et al.

Supreme Judicial Court of Massachusetts. Norfolk.

Jan. 19, 1937.

Report from Supreme Judicial Court, Norfolk County.

Mandamus proceedings by William H. J. Fitzgerald against the Selectmen of Braintree and others. On report from the Supreme Judicial Court for the County of Norfolk.

Peremptory writ of mandamus ordered to issue.J. W. French, of South Braintree, for petitioners.

R. A. Hunt, of South Braintree, for respondents.

RUGG, Chief, Justice.

This petition for a writ of mandamus is brought by a citizen and voter of Braintree to prevent the selectmen and other officers of that town from carrying out the provisions of St.1936, c. 56. Brewster v. Shereman, 195 Mass. 222, 80 N.E. 821,11 Ann.Cas. 417. The issue to be decided is whether that statute has become operative in conformity to article 70 of the Amendments to the Constitution. The pertinent facts in that connection are these: At the annual meeting of the town of Braintree it was voted on April 11, 1932, that a committee of five be appointed by the moderator ‘to petition the legislature for an act enabling the Town to adopt’ the limited town meeting form of government. The committee was appointed and petitioned the General Court in 1936 with an accompanying bill for the passage of legislation to establish in the town of Braintree a form of representative town government by limited town meetings. Pursuant to that petition, said chapter 56 was enacted and approved on February 17, 1936. It contained section 12 in these words: ‘This act shall be submitted to the registered voters of the town of Brantree for acceptance at its annual town election in the year nineteen hundred and thirty-six notwithstanding the closing of the warrant for said annual election. The vote shall be taken by ballot in accordance with the provisions of the general laws so far as the same may be applicable in answer to the question which shall be placed upon the official ballot to be used in the several precincts for the election of town officers at said election:-‘Shall an act passed by the general court in the year one thousand nine hundred and thirty-six entitled ‘An act establishing in the town of Braintree representative town government by limited town meetings', be accepted by this town?’ If accepted by a majority of the voters voting thereon this act shall thereupon take effect for all purpose incidental to the annual town election in said town in the year nineteen hundred and thirty-seven, and shall take full effect beginning with said election.'

Prior to February 17, 1936, the town meeting warrant for the annual town election in Braintree for 1936, to be held on March 2, had in fact closed and nothing appeared in that warrant in any way warning or informing the inhabitants of the town that the question set forth in said section 12 would appear on the ballot. The question was printed on the official ballot for that meeting. The committee appointed pursuant to the vote of April 11, 1932, caused to be published on February 21 and February 28, 1936, in two successive issues of a newspaper printed in Braintree, a notice over their names directing the attention of the voters of Braintree to the fact that the question of the acceptance of said chapter 56 would appear upon the ballot at the annual town election for 1936. The official count of the ballots taken on that question was ‘Yes' 2,157, ‘No’ 1,106, and ‘blanks' 2,675. It was provided by article 2 of the Amendments to the Constitution, approved and ratified in 1821, empowering the General Court ‘to erect and constitute municipal or city governments, in any corporate town or towns in the commonwealth,’ that ‘no such government shall be erected or constituted in any town not containing twelve thousand inhabitants, nor unless it be with the consent, and on the application of a majority of the inhabitants of such town, present and voting thereon, pursuant to a vote at a meeting duly warned and holden for that purpose. And provided also, that all by-laws made by such municipal or city government shall be subject, at all times to be annulled by the general court.’ By article 70 of the Amendments ot the Constitution, approved in 1926, said article 2 was amended by adding at the end thereof the following new paragraph: ‘Nothing in this article shall prevent the general court from establishing in any corporate town or towns in this commonwealth containing more than six thousand inhabitants a form of town government providing for a town meeting limited to such inhabitants of the town as may be elected to meet, deliberate, act and vote in the exercise of the corporate powers of the town subject to such restrictions and regulations as the general court may prescribe; provided, that such establishment be with the consent, and on the application of a majority of the inhabitants of such town, present and voting thereon, pursuant to a vote at a meeting duly warned and holden for that purpose.’ One essential provision in each of these Amendments is in identical words to the effect that no municipal or city government shall be erected and constituted and no limited town meeting form of government shall be established except ‘with the consent, and on the application of a majority of the inhabitants of such town, present and voting thereon, pursuant to a vote at a meeting duly warned and holden for that purpose.’ Manifestly these words have the same meaning in each Amendment. In Larcom v. Olin, 160 Mass. 102, at page 104, 35 N.E. 113, 114, where the subject was somewhat discussed, it was said: ‘So far as we are aware, every town which has been made a city has been incorporated by a special act of the general court upon the application of the town; and the act, after it has been passed, has been accepted by the inhabitants of the town before it took effect as an act of incorporation’; and at page 108 of 106 Mass., 35 N.E. 113, 116: ‘The practical construction put upon the proviso has been that the inhabitants of a town must first make an application to the general court by a vote of its inhabitants, and, if an act of incorporation is passed pursuant to the application, that the act must be submitted for acceptance to the inhabitants.’ An examination of the statutes enacted since that decision was rendered shows that that practical...