Kidder v. Mayor of Cambridge

• Decision Date: 11 December 1939
• Citation: 24 N.E.2d 151,304 Mass. 491
• Parties: KIDDER v. MAYOR OF CAMBRIDGE et al. CABRAL et al. v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

304 Mass. 491

24 N.E.2d 151

KIDDER

v.MAYOR OF CAMBRIDGE et al.

CABRAL et al.

v.SAME.

Supreme Judicial Court of Massachusetts, Middlesex.

Dec. 11, 1939.

Report from Supreme Judicial Court, Middlesex County.

Mandamus proceeding by Clarence P. Kidder against the Mayor of Cambridge, one Noonan, and others, heard together with a proceeding by Joseph B. Cabral and others against the Mayor of Cambridge and others. On report.

Peremptory writ granted.H. Parker and D. T. Gallup, both of Boston, for petitioners.

R. C. Evarts, City Sol., of Boston, for respondents.

DOLAN, Justice.

These are two petitions in each of which a writ of mandamus is sought. The cases were heard together by a single justice of this court who, without decision, reported them upon the petitions, answers and statement of agreed facts for the determination of the full court. The case therefore come before us on the report as cases stated. G.L.(Ter.Ed.) c. 231, § 126.

In the first case, Clarence P. Kidder is the sole petitioner, and the respondents are the mayor of Cambridge, three duly appointed and qualified election commissioners of that city, and Benjamin F. Wyeth. The petitioner seeks the issuance of the writ to compel the mayor and the three duly qualified election commissioners to recognize him as an election commissioner of the city until such time as his successor is appointed in accordance with the provisions of St.1939, c. 43, and to restrain the respondent Wyeth from assuming to act as such a commissioner.

In the second case, the nine petitioners (of whom the petitioner in the first case is one) are duly qualified Republican voters of the city of Cambridge; with one exception they are members of the Republican city committee of that city. They bring the petition in their own rights as citizens and Republican voters. Some of them were duly authorized thereto on behalf of the Republican city committee. The respondents are the mayor and Wyeth, who are also among the respondents in the first case. The relief prayed for is that the writ issue to require the mayor to appoint as an election commissioner, in place of Kidder whose term has expired, one person from a list of three submitted to the mayor by the committee under the provisions of St.1939, c. 43, and to require Wyeth to refrain from assuming to act as an election commissioner.

It is agreed that, in addition to facts set forth in the statement of agreed facts, those admitted by the pleadings may be taken as true. Material facts are these: The board of election commissioners of the city of Cambridge was established by St.1921, c. 239. This statute was amended by St.1939, c. 43. As amended, pertinent provisions are that, as the term of any of the commissioners expires, the mayor shall appoint his successor without need of confirmation by a city council, so that as equally as may be the members of the board shall represent the two leading political parties, and that in no case shall an appointment be made so as to cause the board to have more than two members of the same political party. It is further provided that ‘Every such appointment shall be made from a list to be submitted to him [the mayor] by the city committee of the political party from the members of which the position is to be filled, containing the names of three enrolled members of such party resident in said city, selected by vote of a majority of the whole membership of such committee; and every member of said board shall serve until the expiration of his term and until his successor has qualified.’ Kidder was appointed an election commissioner in 1935 and his term expired May 1, 1939. At that time the board consisted of two Democrats and two Republicans, Kidder being one of the latter. Thus the two leading political parties of the city had equal representation on the board, as required by the statute.

In April, 1939, a meeting of the members of the Republican city committee was called for May 4, 1939, for the purpose of selecting three candidates whose names should be submitted to the mayor for the appointment of one of them as election commissioner as provided in St.1939, c. 43. On May 1, 1939, the mayor assumed to appoint the respondent Wyeth, an enrolled Republican, as election commissioner in place of Kidder, whose term had then expired. A meeting of the Republican city committee was held on May 4, and the chairman announced that the number of votes necessary to constitute a majority of the whole membership was eighty-eight, Kidder and the petitioners (in the second case) Cazmay and Skinner were selected by votes of ninety-three to one, ninety-two to two and ninety-one to three, respectively, to constitute the list of three persons to be submitted to the mayor. On May 6 the mayor received the list of these three names, described as having been selected by a majority of the whole membership of the committee and submitted, in compliance with St.1939, c. 43. In order that, in accordance therewith, the mayor should make an appointment to the election commission from the list. No person thus selected has been appointed by the mayor, and no other names have been submitted to him by the committee. In these circumstances it follows that, if the governing statute is constitutional, Kidder is still an election commissioner and entitled to be recognized as such until a successor to him has qualified.

The respondents contend that the statute is unconstitutional and invalid, arguing that it is ‘plainly unworkable’ and that this fact was recognized by the Legislature, since a few months after the enactment of St.1939, c. 43, its provisions were amended by St.1939, c. 432, so that instead of a vote of a majority of the whole membership being required to select possible appointees, only a majority vote of those members present and voting at a meeting, provided that no less than thirty such members are present and voting, is now required. We think that the amendment of a statute does not constitute in itself any sound ground for the contention that the statute which is amended was unconstitutional, and also that mere difficulty or inconvenience in carrying out its terms does not render it invalid. If the meaning of a statute is clear, its inconvenience cannot be considered by the courts. Madden's Case, 222 Mass. 487, 111 N.E. 379, L.R.A.1916D, 1000.

The respondents further contend that St.1939, c. 43, imposes unreasonable and invalid limitations upon the mayor's power of appointment, arguing that, by requiring a majority vote of the whole membership of the committee instead of the more usual majority vote of a quorum, it becomes entirely possible that on some occasions the vote required cannot be obtained. They contend that no such vote of the committee was obtained at its meeting on May 4, and further argue that, since in such situation there would be no available list from which the mayor could make an appointment under c. 43, he is thus deprived of all power to appoint a commissioner.

The Constitution of this Commonwealth, Part II, c. 1, § 1, art. 4, empowers the General Court ‘to name and settle annually, or provide by fixed laws, for the naming and settling all civil officers within the said commonwealth; the election and constitution of whom are not hereafter in this form of government otherwise provided for.’ The members of the board of election commissioners of the city of Cambridge are civil officers. See Opinion of the Justices, Mass., 21 N.E.2d 551, and cases cited. Their offices were created by St.1921, c. 239. It follows that the Legislature could determine the manner of selecting such officers, and that it was within its power to alter the method of appointment. Taft v. Adams, 3 Gray, 126, 130, 131;Barnes v. Mayor of Chicopee, 213 Mass. 1, 4, 99 N.E. 464. See also Adie v. Mayor of Holyoke, Mass., 21 N.E.2d 377. Although the Legislature could not impose unreasonable limitations, inconsistent with the nature of our government, upon the power of appointment, Brown v. Russell, 166 Mass. 14, 25, 43 N.E. 1005,32 L.R.A. 253, 55 Am.St.Rep. 357, we think it cannot be said that a requirement of a vote of a majority of the whole...