Forbes v. Kane

• Decision Date: 05 May 1944
• Citation: 316 Mass. 207,55 N.E.2d 220
• Parties: JOHN J. FORBES v. WILLIAM E. KANE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

316 Mass. 207

55 N.E.2d 220

JOHN J. FORBES v. WILLIAM E. KANE.

Supreme Judicial Court of Massachusetts, Middlesex.

May 5, 1944

January 26, 1944.

Present: FIELD, C.

J., LUMMUS, QUA & WILKINS, JJ.

Woburn. Municipal Corporations, City charter, Officers and agents.

Public Officer. Unlawful Interference. Actionable Tort. Evidence, Judicial notice. Waiver. Civil Service. District Court, Review of action with respect to civil service.

This court takes judicial notice of a statutory city charter, but not of a city ordinance.

Under the charter of Woburn, St. 1897, c. 172; St. 1914, c. 372, the power of appointing the inspector of wires was in the city council.

Formal action by the city council of Woburn over a period of years in fixing the salary for the office of inspector of wires and in appropriating the salary so fixed might properly be found to have been a recognition and acceptance by the council of one as the holder of the office who during such period performed the duties and received the salary thereof, and to have been the equivalent of a valid formal appointment of him by the council within the authority given by the charter.

If the mayor of a city, in removing a city officer, relied on a decision by a trial court, later reversed by this court, that an ordinance under which the officer had been appointed was invalid, such reliance would not be a defence to a subsequent action of tort by the officer against the mayor for illegal removal.

Bad faith on the part of the defendant is not a necessary element in a cause of action for illegally removing a public officer and thereafter preventing him from performing the duties and enjoying the perquisites of his office.

Illegal acts of the mayor of a city, outside his jurisdiction, in purporting to remove a city officer and thereafter preventing him from being recognized as the holder of the office and from performing the duties thereof justified recovery by the officer against the mayor personally in an action of tort. If the holder of an office in the civil service, by seeking review by a

District Court of a purported removal of him from the office, waived the point that the removal was by one having no jurisdiction to remove him, such waiver would be only for the purposes of the proceeding in the

District Court and would not be a defence to a subsequent action of tort by the officer for illegal removal.

TORT. Writ in the Superior Court dated September 8, 1941. The declaration was as follows: "Now comes the plaintiff in the above entitled case and says that he is the present incumbent of the office of inspector of wires and gas in the city of Woburn having been appointed to that office in 1921. The defendant is the mayor of the city of Woburn. On or about July 1, 1938, the defendant wrongfully and unlawfully purported to remove the plaintiff from his office. The defendant wrongfully and unlawfully failed and refused to give the plaintiff notice and to furnish him with a copy stating specifically the reasons for removal and to afford him an opportunity to prepare and present his defense and thereafter wrongfully and unlawfully restrained and prevented him from holding said office and performing and exercising the duties of said office, wrongfully and unlawfully ousting plaintiff from said office and depriving him of the privileges and emoluments pertaining thereto and wrongfully and unlawfully refusing to recognize him as holding said office. The plaintiff thereafter on December 15, 1938 brought suit against the city of Woburn to recover his salary and to determine his right to the position and on May 28 1940, the Supreme Judicial Court held that the plaintiff was entitled to the position; that on October 16, 1940, in a proceeding brought in the Fourth District Court of Eastern Middlesex the defendant was ordered to restore the plaintiff to his position without loss of compensation but despite this the defendant continues to refuse to permit the plaintiff to perform the duties of his office and to allow the payment of his salary to the plaintiff. By reason of the foregoing, the plaintiff's reputation and standing in the community both as a public officer and a citizen have been seriously damaged, he has been deprived of the salary of said office and has been put to great expense to carry on the litigation necessary to establish his right to said office and to recover the salary therefor, all to his great damage as alleged in his writ."

The case was heard by Good, J., without a jury. There was a finding for the plaintiff, and the defendant alleged exceptions. In this court the case was submitted on briefs.

E. T. Simoneau, for the defendant.

J. W. Bartlett & W.

G. Guernsey, for the plaintiff.

WILKINS, J. There is presented another aspect of the controversy concerning the holding by the plaintiff of the office of inspector of wires and gas of Woburn. See Forbes v. Woburn, 306 Mass 67 . This action of tort is against the mayor for unlawfully preventing the plaintiff from enjoying the perquisites of that office. The defendant's exceptions raise solely the question whether the trial judge was warranted in finding for the plaintiff.

1. The defendant contends that the declaration has limited the cause of action to the period between July 1, 1938, the date on which, it was alleged, the defendant removed the plaintiff from office, and December 15, 1938, and that there was no evidence of acts by the defendant during that period on which a finding for the plaintiff was warranted. The point is not open, as the defendant's requests for rulings, which were to the effect that there must be a finding in his favor, were not based upon the pleadings. Botti v. Venice Grocery Co. 309 Mass. 450 , 458. Nor is this contention sound. The evidence does show that the defendant removed the plaintiff on August 4, 1939, but the declaration also sets up reinstatement on October 16, 1940, by order of the Fourth District Court of Eastern Middlesex and further alleges, "despite this the defendant continues to refuse to permit the plaintiff to perform the duties of his office and to allow the payment of his salary to the plaintiff."

2. The defendant assails the validity of the ordinance creating the office on the ground that the city council was not authorized to confer the power of appointing the inspector of wires and gas upon the superintendent of public works but could confer the power only upon the mayor. This point was not discussed in Forbes v. Woburn, 306 Mass. 67 . It may now be raised. That "decision does not stand as authority for any proposition not considered." Cawley v. Northern Waste Co. 239 Mass. 540 , 544.

We take judicial notice of the acts incorporating the city of Woburn, but ordinances must be put in evidence and made part of the bill of exceptions. Attorney General v. McCabe, 172 Mass. 417 , 420. Commonwealth v. Kimball, 299 Mass. 353 , 355. G. L. (Ter. Ed.) c. 233, Section 74; Section 75 (now amended by St. 1943, c. 190).

The only section of the ordinance to which our attention is thus directed reads as follows: "There shall be an inspector of wires and gas who shall be appointed by the Superintendent of Public Works and who shall have the care, repair, construction, alteration, superintendence and management of all electrical and gas equipment of every name and nature owned and operated by the city in any and all of its departments, and the annual salary of such inspector shall be $3,000" (c. 17, Section 1, effective April 7, 1931).

Woburn became a city in 1889, following the adoption of a charter. See St 1888, c. 374. By St. 1890, c. 404, Section 3, it was provided: "Every city shall, by ordinance, designate or provide for the appointment of an officer who shall supervise every wire over streets or buildings in such city, and every wire within a building when such wire is designed to carry an electric light or power current; shall notify the person or corporation owning or operating any such wire whenever its attachments, insulation, supports or appliances are unsuitable or unsafe, or the tags or marks thereof are insufficient or illegible, and shall, at the expense of the city, remove every wire abandoned for use, and every wire which after the six months aforesaid shall be unprovided with a tag or mark, as hereinbefore required, such expense to be repaid by the owner of such wire; and shall see that all laws, ordinances and regulations relating to such wires are strictly enforced." Thereafter the voters accepted a new charter. See St. 1897, c. 172. This gave the city council the general power to make ordinances (Section 18) as well as the specific authority to fix by ordinance the salaries of the offices created by the charter statute and of offices that might be created thereafter (Section 20); required the mayor annually to recommend appropriations to the city council (Section 27); laid upon the city council the duty to appropriate the amount necessary to meet expenditures for the current municipal year (Section 21); created a board of public works consisting of the mayor and four others appointed by him (Section 32); and gave to the board "cognizance, direction and control . . . (h) of the supervision of electric light, power, telephone, telegraph and trolley wires, and electric light, telegraph and telephone poles and gas pipes, and the erection, placing and removal thereof . . . [together with] the power to employ engineers, superintendents, clerks and such other assistants as they may deem necessary, and to fix the compensation of their appointees" (Section 33). "The new charter is complete in itself; it is intended to be exclusive in its field. All earlier statutes, so far as inconsistent with its terms, are deemed to be repealed. All...