Kaczmarski v. Mayor of Springfield

• Decision Date: 05 November 1963
• Citation: 193 N.E.2d 574,346 Mass. 432
• Parties: John J. KACZMARSKI v. MAYOR OF SPRINGFIELD et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 574

193 N.E.2d 574

346 Mass. 432

John J. KACZMARSKI v. MAYOR OF SPRINGFIELD et al.

Supreme Judicial Court of Massachusetts, Hampden.

Argued Oct. 10, 1963.

Decided Nov. 5, 1963.

John J. O'Connor, Assoc. City Sol., for respondents.

S. Thomas Martinelli, Springfield, for petitioner.

Before SPALDING, WHITTEMORE, CUTTER, KIRK, SPIEGEL and REARDON, JJ.

WHITTEMORE, Justice.

The mayor of Springfield and Leroy Clayborne have appealed from an order of the Superior Court which directs the issuance of a writ of mandamus to cancel and annul both the removal by the mayor of the petitioner as a member of the board of park commissioners and the mayor's appointment of Clayborne to that post. The removal and appointment occurred on March 15, 1962, without city council action.

The order is based on the ruling that G.L. c. 45, § 2, is applicable. That section provides: 'The mayor of a city may, with the approval of the city council, appoint a board of park commissioners for said city * * *. A commissioner may be removed * * * by a vote of two thirds of all the members of a city council.'

The mayor acted under G.L. c. 43, §§ 52 and 54, which are a part of Springfield's Plan A ('responsible executive'-- 1915 Senate Doc. No. 254, p. 23) charter. That charter was adopted by the city to be effective on the first Monday of January, 1962; it superseded the charter of St.1852, c. 94 (as amended). Section 52 provides: 'Upon the adoption of Plan A, all heads of departments and members of municipal boards, except the school committee, officials appointed by the governor, and assessors if elected by vote of the people, as their terms of office expire, shall be appointed by the mayor without confirmation by the city council.' Removal power is set out in § 54: 'The mayor may remove the head of a department or member of a board by filing a written statement with the city clerk setting forth in detail the specific reasons therefor, a copy of which shall be delivered or mailed to the person thus removed, who may make a written reply, which, if he desires, may be filed with the city clerk; but such reply shall not affect the action taken unless the mayor so determines. This section shall not apply to the school committee, or to officials appointed by the governor, or to assessors if elected by the people.'

The respondents contend that the applicability of the mayor's Plan A powers is established by G.L. c. 43, § 11: '* * * [T]he form of government under the plan adopted by the city, shall supersede the provisions of its charter and of the general and special laws relating thereto and inconsistent herewith * * *.'

We agree. We hold, for the reasons stated below, that the board of park commissioners is a municipal board within the purview of G.L. c. 43, §§ 52 and 54. The board is a 'department' of the city subject to G.L. c. 44, § 31. See McCarthy v. City of Malden, 303 Mass. 563, 565, 23 N.E.2d 104. The municipality, of course, provides its funds. Ibid. G.L. c. 40, § 5(5) and last clause; c. 45, § 3; c. 40, § 14; c. 44, § 7(2). The board makes reports of its 'doings and detailed statements of all receipts, expenditures and liabilities * * * to the city council annually * * *.' G.L. c. 45, § 9. The General Court has expressly referred to it as a board of 'its city or town.' G.L. c. 45, § 3. Even if the park board had an unusual relationship to the structure of municipal government it could, nevertheless, be a municipal board in important aspects. Eastern Massachusetts St. R. Co. v. Mayor of Fall River, 308 Mass. 232, 234, 31 N.E.2d 543 (school committee). Municipal Light Comm. of Taunton v. State Employees' Group Ins. Comm., 344 Mass. 533, 534-536, 183 N.E.2d 286. But we note no significant anomaly in respect of the place of park boards in the group of agencies which govern municipal affairs. Of course, the parks which a park board creates and administers are held and maintained by the municipality for the benefit of all members of the public. Lowell v. Boston, 322 Mass. 709, 731, 79 N.E.2d 713, app. dism. sub nom. Pierce v. Boston, 335 U.S. 849, 69 S.Ct. 84, 93 L.Ed. 398. But town ways are likewise available to all the public. That park land may be disposed of only on specific legislative authorization (JACOBSON V. PARKS & RECREATION COMM. OF BOSTON, MASS., 189 N.E.2D 199)¹ does not make the board which acquired it less a municipal board.

It is not significant that the provisions as to parks are in a separate chapter. There are special chapters as to public schools. See G.L. cc. 70, 71, 72, 74, 76. The petitioner points out that §§ 31-36 of c. 43 contain general provisions for the election, organization and powers of school committees in any city operating under any of the charters provided for in that chapter. There can, therefore, be no doubt that the school committee is 'classed with departments and boards' in c. 43, subject, however, to the stated exceptions. Eastern Massachusetts St. R. Co. v. Mayor of Fall River, 308 Mass. 232, 234, 31 N.E.2d 543. G.L. c. 43, §§ 52, 54, 60, 61, 67, 81, 95, 122, 124. It is clear that general provisions for the establishment of municipal boards may be found outside c. 43. See, e. g., G.L. c. 41.

Strachan v. Mayor of Everett, 326 Mass. 659, 96 N.E.2d 392, is illuminating. In 1891, Everett accepted St.1882, c. 154 (the forerunner of G.L. c. 45). Everett's charter was enacted in St.1892, c. 355. Section 35 of this charter, unlike a general plan charter under G.L. c. 43, made express reference to parks: 'The city council may from time to time, subject to the provisions of this act and in accordance with general laws, if they exist in any particular case, provide by ordinance for the establishment of additional boards and other offices * * * [and] for the direction and custody of public parks.' Section 29 of the charter provided that '[t]he mayor shall appoint, subject to the confirmation or rejection of the board of aldermen, all the officers of the city, unless their election or appointment is herein otherwise provided for. * * * Any officer so appointed may be removed by the mayor for such cause as he shall deem sufficient * * *.' It was...