Kenney v. McDonough

• Decision Date: 27 March 1944
• Citation: 53 N.E.2d 1006,315 Mass. 689
• Parties: EDWARD T. KENNEY v. HAROLD E. MCDONOUGH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

315 Mass. 689

53 N.E.2d 1006

EDWARD T. KENNEY v. HAROLD E. MCDONOUGH.

Supreme Judicial Court of Massachusetts, Middlesex.

March 27, 1944

March 7, 1944.

Present: FIELD, C.

J., LUMMUS, DOLAN RONAN, & WILKINS, JJ.

Municipal Corporations, Officers and agents. Public Officer. Civil Service. Woburn.

The office of auditor of the city of Woburn, which by Section 14 of the city charter, St. 1897, c. 172, was to be filled by election by the city council, continued to be "an office filled by the city council" within Section 10A, inserted in St. 1941, c. 708 by St. 1943, c. 548,

Section 3, after the voters of the city had voted to place the office within the civil service and to continue the then incumbent in office if he should pass a qualifying examination.

An appointment to an office in the civil service by the proper appointing authority is void as contrary to G. L. (Ter. Ed.) c. 31 Section 15, as appearing in St. 1941, c. 491, and Civil Service Rules 17 and 21, if it precedes requisition and certification or authorization for provisional appointment.

The sending of a civil service requisition signed by one as president of a city council and by others constituting a majority of the council and designating themselves as members thereof, and of a notification to the director of civil service purporting to be signed in the name of the council "by" the president, was not the act of the council, and was ineffective, in the absence of a vote respecting such matters taken at some valid meeting of the council.

PETITION, filed in the Superior Court on October 27, 1943. The case was heard by Hanify, J.

J. W. Bartlett, for the petitioner. J. Gorrasi, City Solicitor, for the respondent, submitted a brief.

WILKINS, J. This is a petition for a writ of mandamus, by which the petitioner seeks to establish his right to the office of city auditor of the city of Woburn, the duties of which are now performed by the respondent, and to require the surrender of the office to the petitioner. The case was heard by a judge of the Superior Court upon the pleadings and a statement of agreed facts. The judge found the facts to be as agreed, and reported the case, without decision, for determination by this court.

From the agreed facts, the following appears: In 1939 Hugh F. Gilgun, Jr. was reelected auditor for a term of three years. By St. 1897, c. 172 (the city charter of Woburn), Section 14, it is provided: "The city council shall . . . elect by a majority vote of all its members . . . an auditor . . . Vacancies in said offices shall be filled by election by the city council." By St. 1905, c. 373, a general act applicable to all municipal auditors, the term of the office was made three years. At the State election held on November 5, 1940, pursuant to St. 1939, c. 183, the following questions appeared, on the ballot: "Shall the city of Woburn vote to have the office of city auditor placed within the classified civil service?" and "If it is voted to place the office of city auditor within the classified civil service, shall the city of Woburn vote to provide for the continuance in said office of Hugh F. Gilgun, Jr., the present incumbent thereof, after passing a qualifying examination?" A majority of the votes cast were in the affirmative to both questions. Gilgun then took a noncompetitive qualifying examination, qualified, and was certified by the civil service commission. He continued to discharge the duties of auditor until April 22, 1942, when he entered the military service of the United States, and, complying with the statutory requirements, was deemed to be on leave of absence. See St. 1941, c. 708, Section 1 (retroactively amended by St. 1943, c. 548, Section 1). He is still in the military service. Since April 22 there has been no civil service eligible list of males for auditor as military substitute under St. 1941, c. 708, Section 3. On April 30 the mayor applied to the director of civil service, certifying that he had the power of appointment, making requisition for a temporary auditor, as required by St. 1941, c. 708, Section 3, (now amended by St. 1943, c. 548, Section 2,) and stating: "the person appointed will be employed from April 30,

1942 to indefinite (City Auditor on military leave)." ^[1] On September 23 the director replied: "provisional appointment of a veteran is authorized for 6 months under the provisions of Ch. 13, Sec. 5, Acts of 1942. In the event you are unable to obtain a veteran and will so certify on the enclosed blank forms #14, you are hereby authorized to appoint some other person." On September 28 the mayor sent a form, entitled "Notification of Employment," to the director of civil service, in which he stated that he had selected the respondent as city auditor, "temporary services to begin October 1," and certified that he was unable to find a qualified veteran who would accept the position. From time to time the director of civil service authorized the continued provisional employment of the respondent, the last extension being June 28, 1943, until December 31, 1943. On September 13 the director wrote the mayor calling his attention to a recent statute and suggesting that request for the continued employment of the respondent should be made by the city council. This statute is St. 1943, c. 548, Section 3, inserting a new Section 10A in St. 1941, c. 708, and provides: "In case an elected officer of a city, except in Boston, . . . is unable to perform the duties of his office by reason of said military or naval service, an acting officer who in his absence from the city shall possess all the rights and powers, perform all the duties, and be subject to all the obligations, of said office until the return of the absent officer to the duties of such office or until the expiration of the term thereof, whichever first occurs, shall be selected as follows: . . .

"(2) If the said vacancy is in an office held by an individual not a member of a board, the mayor may appoint a person to fill the vacancy.

"If the holder of an office, other than that of a member of a board, in a city other than Boston, which is filled by the city council, whether by appointment or election, is unable to perform the duties of his office by reason of said military or naval service, an acting officer who in his absence from the city shall possess all the rights and powers, perform all the duties, and be subject to all the obligations, of said office until the return of the absent officer to the duties of such office or until the expiration of the term thereof, whichever first occurs, may be appointed by the city council."

On September 16 1943, the city council at a regular meeting elected the petitioner "temporary City Auditor, military substitute, to replace City Auditor now in the service." The fact of the election was reported by the clerk of the city council to the director of civil service, who...