Kaplan v. Sullivan

• Decision Date: 05 March 1935
• Citation: 290 Mass. 67,194 N.E. 721
• Parties: KAPLAN v. SULLIVAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

290 Mass. 67

194 N.E. 721

KAPLAN v. SULLIVAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 5, 1935

Case reserved from Supreme Judicial Court, Suffolk County.

Petition for a writ of mandamus by Jacob J. Kaplan against E Mark Sullivan and others, which was reserved for determination by the Supreme Judicial Court.

Petition dismissed.

L. B. Newman and J. J. Kaplan, both of Boston, for petitioner.

F. R Mullin, G. I. Kellaher, and E. P. Keleher, all of Boston, for respondents.

J. J. Ronan, Asst. Atty. Gen., and H. P. Fielding, Asst. Atty. Gen., amici curiae.

RUGG Chief Justice.

This petition for a writ of mandamus has been reserved for determination upon the petition, the answers and a statement of agreed facts. The object of the proceeding is to determine whether the petitioner is the chairman of the finance commission of the city of Boston. The material facts shown by the record and these: In consequence of an existing vacancy, on December 27, 1934, the Governor of the Commonwealth with the advice and consent of the Council constituted and appointed the petitioner to be a member of the finance commission, and designated him chairman ‘ * * * to hold said trust for the remainder of the term of Five Years, ending on the eighteenth day of August, nineteen hundred and thirty-five and until his successor shall have been appointed and qualified, unless sooner removed therefrom.’ The petitioner qualified and entered upon the performance of his duties. A vacancy again existing in the finance commission on January 9, 1935, the Governor elected for the term beginning on the first Wednesday in January, 1935, with the advice and consent of the Council appointed the respondent E. Mark Sullivan (hereafter called the respondent) to be a member of the finance commission for the remainder of the term of five years ending on the 17th of July, 1938, and until his successor shall have been appointed and qualified, unless sooner removed therefrom, and designated him to be chairman. The respondent duly qualified on the same day. He asserts that he is chairman of the finance commission and he has been recognized as such by the other members except the petitioner.

The finance commission of the city of Boston was established by St. 1909, c. 86, § 17. It is there provided that it shall consist of five members to be appointed within sixty days after the passage of the act, ‘ one for the term of five years, one for four years, one for three years, one for two years, and one for one year, and thereafter as the terms of office expire in each year one member for a term of five years. Vacancies in the commission shall be filed for the unexpired term by the governor with the advice and consent of the council. The members of said commission may be removed by the governor with the advice and consent of the council for such cause as he shall deem sufficient. The chairman shall be designated by the governor. His annual salary shall be five thousand dollars, which shall be paid in monthly instalments by the city of Boston. The other members shall serve without pay.’

The section just quoted is a part of a statute relating to the administration of the city of Boston and amending its charter. Thereby the finance commission was first created. Other sections of the chapter confer upon the commission important duties of investigation as to the finances and business management of Boston and power to summon and examine witnesses and to perform other functions. No special powers are conferred upon any one member above the others. Each member must be appointed by the Governor with the advice and consent of the Council. The members may be removed by the Governor with the advice and consent of the Council. One of the members must be designated as chairman by the Governor but without the advice and consent of the Council. The salary of the chairman is fixed, and the obligation to pay it in specified instalments is imposed on the city. No express provision is made for the removal of the chairman. There is no definition of the powers or duties of the chairman. These are left to implication. When a member is designated as chairman, he retains all the powers and is subject to all the duties of a member. A substantial salary is paid to the chairman. The other members serve without pay.

The relevant terms of the statute reveal no legislative intention to create the office of chairman of the commission as separate and distinct from the office of member of the commission. One who has been designated as chairman manifestly would cease to be chairman when for any reason he was no longer a member of the commission. One designated as chairman might resign as such without affecting his membership of the commission. The salary paid to the chairman indicates that he must contribute more to the work required of the commission than the other members who...