Reynolds v. McDermott

• Decision Date: 16 June 1928
• Citation: 162 N.E. 1,264 Mass. 158
• Parties: REYNOLDS v. McDERMOTT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

264 Mass. 158

162 N.E. 1

REYNOLDS

v.McDERMOTT.

Supreme Judicial Court of Massachusetts, Middlesex.

June 16, 1928.

Report from Supreme Judicial Court, Middlesex County.

Petition by James H. Reynolds for a writ of mandamus to Thomas P. McDermott. The petition was dismissed, and the case reported to the full court, by a single justice thereof. Affirmed.

E. J. Tierney and P. J. Reynolds, both of Lowell, for plaintiff.

M. J. Rogers and J. P. Donahue, of Lowell, for respondent.

PIERCE, J.

This is a petition for mandamus commanding the respondent to cease interfering in any manner with the petitioner in the performance of the duties of the office of superintendent of water works of the city of Lowell, and to cease from attempting to perform the duties of that office. The case was submitted to a single justice of this court upon the petition, answer, and agreement of facts. The justice ordered the petition dismissed as matter of law and, at the request of the petitioner, reports the case for determination to the full court.

The petitioner, in 1924, was examined by the civil service commission and was certified as an eligible for appointment to the position of superintendent of waterworks of the city of Lowell. In December, 1924, he was appointed to the position by the board of public service in accordance with the provisions of St. 1921, c. 383, § 30, parts 3, 4, and 5. Previous to this appointment the petitioner, since July 12, 1920, had been assistant superintendent of the waterworks of Lowell, which was classified under the civil service laws.

The city of Lowell is governed by plan B charter and St. [264 Mass. 160]1921, c. 383, in so far as the latter chapter is not inconsistent with chapter 43 of the General Laws and with such ordinances as have been passed by the city council of the city of Lowell pursuant to G. L. c. 43, § 5. St. 1921, c. 383, § 20, so far as material reads:

‘There shall be the following administrative officers, who shall perform the duties prescribed by law or by ordinance, and such further duties, not inconsistent with the nature of their respective offices or with the general law, as the city council may prescribe, except as otherwise provided herein: * * * A board of public service consisting of three members.’

The make-up, the nomination, the confirmation, the terms of service and the compensation of the members of the board of public service are provided for in St. 1921, c. 383, § 30, part 1. Part 2 of said section provides that the board shall choose a chairman, and appoint a city engineer ‘whom they may remove for cause deemed by them sufficient.’ Part 3 of said section provides that the board shall appoint and remove for cause which they may deem sufficient a superintendent of street and sewer work; that ‘they shall also appoint and remove for cause which they may deem sufficient a superintendent of waterworks, who shall have charge, under the direction of the board of public service and city engineer, of the waterworks of the city.’ Part 4 of said section provides that the board shall have the general direction through executive officers of all assistants, clerks and laborers. Part 5 of said section provides:

‘The aforesaid executive officers shall be appointed for unlimited terms, but may be removed by a majority vote of the board for cause which it may deem sufficient.’

St. 1921, c. 383, § 38, so far as material, provides that:

‘Administrative heads of departments, boards and commissions shall have the power to appoint and employ and to suspend or discharge all subordinate officers and employees in their respective departments, subject to civil service regulations, and laws relating thereto, and shall cause to be kept in their respective departments a record subject to public inspection of all persons appointed or employed therein, and of all persons suspended or discharged, and in case of suspension or discharge the reason therefor.’

G. L. c. 31, § 5, so far as material, reads:

‘No rule made by the board [of civil service] shall apply to the selection or appointment of any of the following: * * * Officers whose appointment is subject to confirmation by the executive council, or by the city council of any city; * * * heads of principal departments of the commonwealth or of a city; * * * and such others as are by law exempt from the operation of this chapter.’

Section 50 of chapter 31 reads:

‘Nothing in this chapter shall repeal, amend or affect any special provision of law relative to any city or town, or extend to any city or town any provision of law to which it is not now subject.’

G. L. c. 43, § 5, reads:

‘Until superseded under this chapter, the organization of the executive and administrative departments, and the powers and duties of the officers and employees of any city adopting any of the plans provided for in this chapter, and the fiscal year of such city shall remain as constituted at the time of the adoption of such plan; but the city council or other legislative body may at any time by ordinance, consistent with general laws, reorganize, consolidate or abolish departments, in whole or in part; transfer the duties, powers and appropriations of one department to another, in whole or in part; establish new departments; and increase, reduce, establish or abolish salaries of heads of departments or members of boards. This section shall not authorize any action in conflict with chapter thirty-one.’

Section 60 of chapter 43 reads:

‘Upon the adoption of plan B, all heads of departments and members of municipal boards, except the school committee, officials appointed by the Governor, and assessors if elected by the people, as their terms of office expire, shall be appointed by the mayor, subject to confirmation by the city council; but the city solicitor shall be appointed, and may be removed, by the mayor, without confirmation by the city council. This section shall apply to the city solicitor in office when plan B becomes operative.’

The board of public service performed the duties of their office until the passage of an ordinance by the city of Lowell on November 9, 1926. The ordinance is entitled ‘Ordinance to abolish the office of the board of public service and transfer the powers and duties heretofore vesting in said board,’ and provides in part as follows:

Section 1: ‘The board of public service heretofore establshed by the provisions of section 30, chapter 383, Acts of 1921, is hereby abolished. All the powers, rights, duties and liabilities heretofore vesting in and imposed upon said board are transferred as hereinafter set forth.’

Section 3: ‘There is hereby created the following administrative offices: * * * Department of waterworks. * * * The superintendent of waterworks shall be the administrative officer who shall have charge and direction of the department of waterworks.’

Section 4: ‘All the powers, rights, duties and liabilities heretofore vesting in and imposed upon the board of public service * * * in relation to the department of waterworks, all the powers, rights, duties and liabilities as vested in the commissioner of waterworks and fire protection, on the 31st day of December, 1921, * * * are hereby transferred to and imposed upon the superintendent of waterworks. * * * The present superintendent of waterworks shall * * * administer the duties of * * * the department of waterworks, as [such] duties are herein defined, until [his successor is] appointed and qualified as provided herein.’

Section 5: ‘The mayor of the city of Lowell shall upon this ordinance taking effect...