Walcott v. City of Cambridge

Decision Date06 June 1966
Citation351 Mass. 32,217 N.E.2d 723
PartiesCharles F. WALCOTT et al. v. CITY OF CAMBRIDGE et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Philip M. Cronin, Boston, for plaintiffs.

Robert W. Meserve, Boston (Charles R. Parrott, Boston, with him) for defendant DeGuglielmo; Andrew T. Trodden, City Sol., for City of Cambridge, also with him.

Before WILKINS, C.J., and SPALDING, KIRK, SPIEGEL, and REARDON, JJ.

WILKINS, Chief Justice.

This suit by more than ten taxable inhabitants against the city of Cambridge and Joseph A. DeGuglielmo (herein called the defendant), recently chosen city manager (see Curry v. Cambridge, Mass., 217 N.E.2d 740), is brought purportedly pursuant to G.L. (Ter.Ed.) c. 40, § 53. The bill of complaint questions the validity of the defendant's appointment as city manager, and seeks to prevent his expending money or incurring any financial obligation on behalf of the city or collecting compensation as city manager. The defendants were separately represented. A demurrer to the bill by the defendant DeGuglielmo was overruled, and both defendants appealed. The case was then presented on agreed facts signed by counsel for all the parties and is reported without decision by a judge of the Superior Court. G.L. c. 214, § 31.

Preferring to base our decision on actual facts we forego discussion of the demurrer and proceed directly to the merits. See Olszewski v. Sardynski, 316 Mass. 715, 717, 56 N.E.2d 607.

Cambridge has a Plan E charter. G.L. c. 43, §§ 93--116, as amended. There is a city council, elected at large, and a mayor elected from among its members. On January 10, 1966, the city council purported to appoint the defendant as city manager. To obviate a legal question, a majority of the council voted to remove the predecessor city manager (see G.L. c. 43, § 103, as amended through St.1950, c. 353), and on February 12, 1966, again voted to appoint the defendant.

The defendant was elected to the Ward 7 Democratic Committee at the Presidential primary on April 28, 1964. G.L. c. 52, § 2, as amended. Thereafter he was elected to be chairman of the city committee, which is composed of the members of the several ward committees. G.L. c. 52, §§ 3, 4. On February 16, 1966, he resigned from the ward committee and, as matter of law, automatically ceased to be chairman of the city committee.

The defendant was elected to the city council in November, 1945, and served until the first Monday of January, 1964, when he resigned. On January 27, 1964, in accordance with G.L. c. 32, § 5, as amended, he filed an application for retirement from the city council on the grounds of superannuation. The city retirement board at a meeting on February 25, 1964, voted to retire him and to pay the allowance provided in c. 32, § 5. The State Division of Insurance approved an allowance as of February 1, 1964, in the yearly amount of $2,218.68. This he has received. On February 14, 1966, the defendant wrote the members of the city retirement board that having been elected to the office of city manager, he waived and renounced for himself, his heirs, and legal representatives any and all rights to receive any pension or retirement allowance due him from any governmental source during his incumbency as city manager. See G.L. c. 32, § 91, as amended. The annual salarly payable to the city manager is no less than $15,000 and no more than $20,000 depending upon length of service of the incumbent.

The fundamental issue is whether the plaintiffs have a remedy in G.L. (Ter.Ed.) c. 40, § 53, which provides: 'If a town or any of its officers or agents are about to raise or expend money or incur obligations purporting to bind said town for any purpose or object or in any manner other than that for and in which such town has the legal and constitutional right and power to raise or expend money or incur obligations, the supreme judicial or superior court may, upon the petition of not less than ten taxable inhabitants of the town, determine the same in equity, and may, before the final determination of the cause, restrain the unlawful exercise or abuse of such corporate power.'

The defendants, relying largely upon Prince v. Boston, 148 Mass. 285, 19 N.E. 218, contend that the suit is really for the purpose of trying the defendant's title to office. This the plaintiffs deny and insist that the suit is to prevent the incurring of illegal expenditures. The expenditures assailed, however, arise out of the defendant's incumbency as city manager. While no definite allegation of an intended specific illegal expenditure, other than the defendant's salary, is made, the suit undeniably is based upon the prospect that expenditures will be made while the defendant holds the office.

The relief sought under c. 40, § 53, is premised (1) upon the defendant's ineligibility in office due to a supposed violation of c. 43, § 103, in that he was elected to a ward committee of a political party and thence to the chairmanship of its city committee; and (2) upon the defendant's alleged inability to receive a salary because of G.L. c. 32, § 91, in that he is receiving a retirement allowance from the city.

In showing the illegalities claimed, the plaintiffs would prove simultaneously that the defendant was improperly chosen city manager, or that, as a matter of public policy, he cannot hold the office without receiving a salary. See Allen v. City of Lawrence, 318 Mass. 210, 213, 61 N.E.2d 133, 160 A.L.R. 486.

This is an attack upon the defendant's title to the office and is one kind of suit against illegal...

To continue reading

Request your trial
5 cases
  • Savage v. City of Springfield
    • United States
    • U.S. District Court — District of Massachusetts
    • June 10, 2020
    ...in the manner there provided." Povey v. Sch. Comm. of Medford, 127 N.E.2d 925, 926 (Mass. 1955).1 See also Walcott v. City of Cambridge, 217 N.E.2d 723, 725 (Mass. 1966) (tax payers cannot rely on § 53 to attack an individual's title to municipal office). First, Plaintiffs' proposed amended......
  • James J. Derba, Inc. v. Hamilton Service, Inc.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • January 3, 1969
    ...the issues raised at the trial on the merits, we do not discuss the artificial case raised by the demurrer. See Walcott v. City of Cambridge, 351 Mass. 32, 33, 217 N.E.2d 723; Massachusetts Bar Ass'n v. Cronin, 351 Mass. 321, 324, 220 N.E.2d 629, and cases Hamilton owned a motel, known as H......
  • Mitchell v. Albanian Orthodox Diocese in America, Inc.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • February 3, 1969
    ...bishop.' The last annual meeting of the regular members was held in 1963. We proceed directly to the merits. Walcott v. City of Cambridge, 351 Mass. 32, 33, 217 N.E.2d 723. JAMES J. DERBA, INC. V. HAMILTON SERV., INC., MASS., 243 N.E.2D It is the law of this jurisdiction that the courts do ......
  • Curry v. City of Cambridge
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 6, 1966
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT