Moloney v. Selectmen of Town of Milford

Citation149 N.E. 317,253 Mass. 400
PartiesMOLONEY v. SELECTMEN OF TOWN OF MILFORD et al.
Decision Date16 October 1925
CourtUnited States State Supreme Judicial Court of Massachusetts

OPINION TEXT STARTS HERE

Report from Supreme Judicial Court, Worcester County.

Petition for mandamus by John J. Moloney against the Selectmen of the Town of Milford and another, to have petitioner reinstated as Chief of Police of Milford. Peremptory writ to issue.

W. A. Murray, of Boston, and J. C. Lynch, J. E. Swift, and W. J. Moore, all of Milford, for plaintiff.

J. E. Crowley, of Boston, and A. B. Cenedella, of Milford, for defendants.

RUGG, C. J.

The petitioner seeks, by this petition for a writ of mandamus, to be reinstated as chief of police of the town of Milford. The respondent selectmen passed a vote removing him from office, refused to state reasons in writing therefor or to grant him a public hearing, and appointed the respondent O'Brien chief of police in his place.

[1] The first point to be decided is whether the town of Milford legally accepted sections 48 and 49 of G. L. c. 31, so as to make applicable to its police force the civil service law. Appropriate articles were in the warrant for the annual town meeting of 1925, and by voice vote and also by vote by show of hands counted by tellers appointed for the purpose, those sections were adopted. The record of the town clerk shows this. The town of Milford does not vote by precincts but official ballots are used for the election of town officers. The respondents contend that votes for such acceptance, in order to be valid, must be by ballot and not otherwise. The relevant statutes are G. L. c. 4, § 4, to the effect that ‘wherever it is provided that a statute shall take effect upon its acceptance by a city or town, such acceptance shall, except as otherwise provided in such statute, be, in a city, by a vote of the city council or, in a town, by vote of the inhabitants thereof at a town meeting,’ and G. L. c. 54, § 104, to the effect that ‘The blank forms and apparatus provided by the state secretary shall be used in * * * taking the vote upon any proposed amendment to the Constitution, upon any law or proposed law submitted to the voters by referendum or initiative petition, upon the question of granting licenses for the sale of certain nonintoxicating beverages, * * * and upon any other question submitted by statute to the voters of any senatorial or representative district, or of any city or town in which official ballots are used.’

[2] These two sections according to familiar rules of statutory construction must, if reasonably possible, be interpreted so as to be harmonious and not contradictory, and all the words of each given some practical effect. It is plain that section 4 applies equally to cities and towns. It contains no requirement that the vote be by ballot. According to its terms, the vote might be by voice or by show of hands, as the town meeting may determine. It carries no implication that such vote by the city council be by any other than the common method. No provision whatever is made for a vote by the inhabitants in a city. The vote must be by the city council alone. The terms of section 104 are equally applicable to cities and to towns in which official ballots are used. The official ballot is used in elections in all cities. There is no provision of law whereby an effective popular vote in cities can be taken except by ballot. If the construction contended for by the respondents were to be adopted, the provisions of section 4 for acceptance of a statute by a city council would be ineffective.

[3] The right interpretation of chapter 54, § 104, is that it applies only to compulsory statutes or question, which by mandate of the Legislature must be submitted to popular vote, and does not apply to optional or permissive statutes or questions such as are submitted for acceptance by a city or town, solely by reason of the voluntary action of appropriate officer, to a city council by proposal of some member and to a town meeting simply by being inserted in the warrant on request of voters or by the discretion of the selectmen. This construction is confirmed by provisions of other statutes in terms authorizing acceptance by a city council or by a town meeting. G. L. c. 40, § 13; chapter 41, § 82. If any other interpretation were given, some permissive acts, which may be accepted at any town meeting, could in fact be accepted only at the annual meeting where alone official ballots are used. G. L. c. 40, §§ 7, 11, 38, 44; chapter 41, § 25. By G. L. c. 41, § 103, permission is granted to cities and towns to accept its terms requiring the establishment of a purchasing department; but by the following section 104 the city council with approval by the mayor may submit the acceptance of section 103 to the voters at an annual city election. The provisions of section 104 would be superfluous if the contention of the respondents is sound. The acceptance of G. L. c. 41, § 82, must in cities be by vote of the city council. The form of this section is imperative. It would be difficult to reconcile it with the proposed interpretation of section 104 of chapter 54. Confirmatory arguments adduced from the terms of other statutes have been presented by the plaintiff, but it is not necessary to specify more.

The history of G. L. c. 54, § 104, indicates that it relates to elections rather than to questions touching the ordinary transactions of a town and having immediate connection with its internal concerns. Without tracing the various mutations of this section from its first appearance in St. 1891, c. 328, § 1, to the present, it is enough to say that its evolution bears no indication that it was intended to apply to such a case as the present vote, where open discussion in town meeting as to the wisdom of adopting the proposal of the article in the warrant might be beneficial and informing to voters desirous of acting in the public interest.

Arguments based upon the large number of voters in Milford and the smallness of its town hall have no relevancy to the interpretation of statutes of state-wide operation.

The conclusion is that the provisions of the civil service law respecting the police force were accepted by the town of Milford at its annual meeting on March 2, 1925, at the adjournment thereof held on March 6, 1925.

[4] The town of Milford has never accepted the provisions of G. L. c. 41, § 97, or corresponding provisions of the earlier statute touching the establishment of a police department. The town has, however, adopted by-laws providing that the selectmen shall annually appoint a chief of police at a fixed salary, and empowering the selectmen to make such rules and regulations ‘for the government and discipline of the police department as they may from time to time deem necessary.’ As matter of custom the selectmen annually have appointed from 30 to 35 police officers and a chief of police. The assignment of patrolmen was left with the chief of police. He designated certain elected constables and appointed police officers and these men were given regular routes, worked stated periods of time and received specified compensation.

This arrangement constituted ‘a regular and permanent police * * * force’ and a ‘chief of police’ as those words are used in the civil service law. G. L. c. 31, §§ 48, 49. It was such a polic force as the town might organize...

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24 cases
  • Commonwealth v. Di Stasio
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 28, 1937
    ...214, 218;Clark v. Easton, 146 Mass. 43, 14 N.E. 795;Commonwealth v. Wotton, 201 Mass. 81, 84, 87 N.E. 202;Moloney v. Selectmen of Milford, 253 Mass. 400, 406, 407, 149 N.E. 317;Sevigny v. Lizotte, 260 Mass. 296, 157 N.E. 594. It is a widely accepted rule that the authority of a judge who is......
  • City of Lawrence v. MacDonald
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 14, 1945
    ...62;Petersilea v. Stone, 119 Mass. 465, 20 Am.Rep. 335; Sheehan's Case, 122 Mass. 445, 23 Am.Rep. 374;Moloney v. Selectmen of Town of Milford, 253 Mass. 400, 406, 407, 149 N.E. 317;Sevigny v. Lizotte, 260 Mass. 296, 157 N.E. 594;Commonwealth v. DiStasio, 297 Mass. 347, 350, 351, 8 N.E.2d 923......
  • Lowry v. Comm'r of Agriculture
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • January 10, 1939
    ...on such a petition, he is entitled to be reinstated, though in all other respects the removal was legal. Moloney v. Selectmen of Milford, 253 Mass. 400, 407, 149 N.E. 317;Peckham v. Mayor of Fall River, 253 Mass. 590, 593, 149 N.E. 622;Reagan v. Mayor of Fall River, 260 Mass. 529, 531, 532,......
  • City of Lawrence v. Commissioners of Public Works& Another.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 14, 1945
    ...Clark v. Easton, 146 Mass. 43 , 45. Damon v. Carrol, 163 Mass. 404 , 409. Commonwealth v. Wotton, 201 Mass. 81 . Moloney v. Selectmen of Milford, 253 Mass. 400 , 405, 407. Commonwealth v. DiStasio, 297 Mass. 347 , ...
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