McDonald v. Justices of Superior Court

• Decision Date: 01 February 1938
• Citation: 13 N.E.2d 16,299 Mass. 321
• Parties: JOHN T. MCDONALD v. SUPERIOR COURT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

299 Mass. 321

13 N.E.2d 16

JOHN T. MCDONALD v. SUPERIOR COURT.

Supreme Judicial Court of Massachusetts, Berkshire.

February 1, 1938

December 13, 1937.

Present: RUGG, C.

J., LUMMUS, QUA & COX, JJ.

Statute Supersedure. Public Officer. Pittsfield. Intoxicating Liquor.

Section 5 of G.L.c 138, as appearing in St. 1933, c. 376, Section 2, giving mayors of certain cities, including Pittsfield, power of removal of members of licensing boards, superseded the provision in Pittsfield's charter, St. 1932, c. 280 Section 30, placing that power in the mayor with the approval of the city council.

PETITION for a writ of certiorari, filed in the Supreme Judicial Court for the county of Berkshire on January 21, 1937.

The case was heard by Field, J., who ordered the petition dismissed as a matter of law. The petitioner alleged exceptions.

W. A. Heaphy, for the petitioner. R. Clapp, Assistant Attorney General, for the respondents.

RUGG, C.J. This bill of exceptions relates to a petition for a writ of certiorari to quash an order made in the Superior Court affirming the removal of the petitioner as a member of the licensing board of Pittsfield by the mayor of that city acting alone. The petitioner was appointed a member of that licensing board in April, 1933, for a term of six years. Pursuant to charges preferred and a hearing thereon before the mayor, the petitioner was removed by the mayor under G.L.c. 138, Section 5, as appearing in St. 1933, c. 376 Section 2, without concurrent action by the city council. The petitioner filed a motion that the hearings and proceedings for removal he conducted under the provisions of St. 1932, c. 280, Section 30, which was the city charter and which required such concurrent action. That motion was denied. Under the provisions of said Section 5 a petition for review was filed in the Superior Court, the result of which was an affirmation of the order of removal made by the mayor. Then the present petition for a writ of certiorari was brought, seeking to quash the order of the Superior Court.

It is stated in the exceptions that the single issue of law here presented challenges the right and power of the mayor to remove the petitioner as a member of the licensing board of Pittsfield arising out of the interpretation of the city charter, St. 1932, c. 280, Section 30, construed in connection with G.L.c. 138, Section 5, as appearing in St. 1933, c. 376, Section 2. Said Section 30 of the city charter of Pittsfield, St. 1932, c. 280, is in these words: "Every appointee whose appointment is made by the mayor and is subject to the confirmation of the city council, may be removed by the mayor subject to the approval of a majority of the members of the city council. The person so removed shall receive a copy of the reasons for his removal, and he may if he desires, contest the same before the city council and may be represented by counsel at the hearing. This act shall not authorize any action in conflict with the general laws relating to the civil service." That statute, by Section 46, must have been accepted by the voters of Pittsfield at the State election held on November 8, 1932, and took effect for the nomination and election of municipal officers in the year 1933, and for all other purposes on the first Monday of January, 1934. The statute now in force authorizing and regulating the manufacture, transportation, sale, importation and exportation of alcohol and alcoholic beverages is contained in St. 1933, c. 376. That chapter was declared to be an emergency law. It was approved December 4, 1933. It was to take effect upon the adoption of the Twenty-first Amendment to the Constitution of the United States, which occurred December 5, 1933. 48 U.S. Sts. at Large, Part 2, 1749. By Section 2 of said new c. 376, the General Laws were amended by striking out c. 138 and superseding that chapter by a new chapter entitled "Alcoholic Liquors." That new chapter, therefore, took effect on December 5, 1933.

The new c. 138 provided in Section 4 that "In each city which is not exempt by the provisions of section ten there shall be a licensing board appointed by the mayor, consisting of three persons . . . ." Pittsfield was not one of the cities exempted by the provisions of Section 10. Pittsfield had no licensing board created by or mentioned in its charter, St 1932, c. 280, or in any special provisions of law operative in 1932. Touching the removal of such licensing board appointed by the mayor, it was provided in said new c. 138, Section 5: "They may be removed by the mayor for cause, after charges preferred, reasonable notice thereof, and a hearing thereon . . . ." Said Section 4 was amended by St. 1934, c. 385, Section 2, so as to provide that the appointment of the members of the licensing board should be by the mayor "subject to confirmation by the board of aldermen or, if there is no such board, by the city council." No change was made in said Section 5 as to removal. The said new c. 138 with Sections 4 and 5 was passed as an emergency measure at the extra session of 1933. It is not likely that it was intended that these two sections should be in conflict. When the city charter of Pittsfield was enacted, when it was approved, and when it was accepted by the voters, the said new c. 138 in all probability could not have been even drafted. The provision of the city...