Strachan v. Mayor of Everett

• Citation: 96 N.E.2d 392,326 Mass. 659
• Parties: STRACHAN et al. v. MAYOR OF EVERETT et al.
• Decision Date: 04 January 1951
• Court: United States State Supreme Judicial Court of Massachusetts

Page 392

96 N.E.2d 392

326 Mass. 659

STRACHAN et al. v. MAYOR OF EVERETT et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Dec. 6, 1950.

Decided Jan. 4, 1951.

M. T. Silverstein, Everett, E. J. Barshak, Malden, for petitioners.

H. E. Albert, City Sol., Everett, for respondents.

Before QUA, C. J., and RONAN, WILKINS, WILLIAMS, and COUNIHAN, JJ.

RONAN, Justice.

This is an appeal by the respondents from a judgment entered upon a petition for a writ of mandamus commanding the respondent mayor of Everett to recognize the petitioners as the duly appointed park commissioners of that city, and ordering three other respondents to refrain from representing themselves as being such commissioners.

Piazza, Strachan, and Della Piano, the petitioners, were appointed by the then mayor on January 12, 1948, July 19, 1948, and February 28, 1949, respectively, as park commissioners for terms that will not expire until 1952, 1953, and 1954, respectively. Their appointments were approved by the board of aldermen but not by the common council, the other legislative branch of the city. Both comprise the city council, but the city council never confirmed the appointments of the petitioners. They continued to occupy their offices as park commissioners until January 3, 1950, when they were notified by the respondent mayor, purporting to act under the city charter, St.1892, c. 355, § 29, that they were removed for the good of the service. This action of the mayor has not been approved by the board of aldermen or the common council. On the same day, the mayor appointed the three respondents to succeed the petitioners. The board of aldermen and the common council have not acted upon these appointments.

The town of Everett on April 30, 1891, duly accepted St.1882, c. 154, authorizing cities and towns to lay out public parks within their limits. This chapter in section 1 provided for the appointment of park commissioners in cities by the mayor with the approval of the city council, and for their removal 'by a concurrent vote of two-thirds of the whole of each branch of such city council.' This section in its present form appears as G.L. (Ter.Ed.) c. 45, § 2, as amended by St.1941, c. 10, § 1, and so far as material provides for the appointment of members of a board of park commissioners by the mayor with the approval of the city council, and that a commissioner may be removed by a vote of two thirds of all the members of a city council. It is undisputed that the provisions of this statute were not complied with in the appointment or removal of the petitioners or in the appointment of their successors.

The city charter, St.1892, c. 355, became operative January 1, 1893. By section 60 provision was made that all general laws and special laws which had been accepted by the town should continue in force upon the acceptance of the charter, until altered, amended or repealed. Section 29 of the charter, so far as material, provides that 'The mayor shall appoint, subject to the confirmation or rejection of the board of aldermen, all the officers of the city unless their election or appointment is herein otherwise provided for. * * * Any officer so appointed may be removed by the mayor for such cause as he shall deem sufficient * * *.' But the appointment of park commissioners is 'herein otherwise provided for', because section 35, so far as pertinent, provides that 'The city council may from time to time, subject to the provisions of this act and in accordance with general laws, if they exist in any particular case, provide by ordinance for the establishment of additional boards and other officers [and] for the direction and custody of public parks'.

The acceptance of St.1882, c. 154, with reference to public parks, including the provisions for the appointment and removal of park commissioners, continued unaffected upon the adoption of the charter by virtue of section 60--assuming such a section was necessary--and, the scope of section 29 being limited by section 35, there is nothing in the city charter that supersedes or is inconsistent with what is now G.L. (Ter.Ed.) c. 45, § 2, as amended. It follows that the appointments of the petitioners by the mayor with the approval of the board of aldermen alone were not in compliance with section 2 and gave them no legal title to the office.

The petitioners, however, contend that, even if their appointments were defective, their duties during their period of service in making annual reports, in preparing estimates for the budgets, and in the performance of the other duties enumerated in the ordinances brought them into such contact with the city council that the latter body must have known that they were serving as park commissioners and so recognized them as such officials, and that such conduct upon the part of the city council was equivalent to a formal approval. They rely upon Connell v. Board of Public Works of Everett, 234 Mass. 491, 125 N.E. 600, Rappaport v. City of Lawrence, 308 Mass. 545, 33 N.E.2d 290, and Forbes v. Kane, 316 Mass. 207, 75 N.E.2d 220. In the first case,...