Welch v. Mayor of Taunton

• Decision Date: 24 January 1962
• Citation: 343 Mass. 485,179 N.E.2d 890
• Parties: Michael J. WELCH 1 v. MAYOR OF TAUNTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 890

179 N.E.2d 890

343 Mass. 485

Michael J. WELCH ¹ v. MAYOR OF TAUNTON.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Nov. 10, 1961.

Decided Jan. 24, 1962.

Philip M. Cronin, Boston, for plaintiffs.

Joseph C. Duggan, Spec. Asst. to City Sol. New Bedford, (Philip J. Assiran, City Sol., Taunton, with him), for defendant, submitted a brief.

Before WILKINS, C. J., and WILLIAMS, WHITTEMORE, CUTTER, and SPIEGEL, JJ. WHITTEMORE, Justice.

This bill in equity for a declaratory decree, brought by a member of the Municipal Light Commission of Taunton (the commission), comes here on report of a judge in the Superior Court without decision.

1. We are asked to determine whether G.L. c. 164, § 56E, inserted by St.1960, c. 643 (effective December 7, 1960), empowers the mayor of Taunton to remove members of the commission, appointed by a former mayor, for a cause, stated in the statute, which occurred prior to its effective date. For the reasons stated below we hold that it does.

Section 56E provides: 'Any member of a municipal light board or municipal light commission appointed under the provisions of any general or special law may be removed by the appointing authority for misfeasance or malfeasance in office or wilful neglect of duty.' There are provisions for notice, hearing and appeal to the Superior Court. Sections 56A to 56D, also newly inserted by St.1960, c. 643, regulate in some detail the making of contracts by a municipal light commission.

Before the insertion of § 56E, the mayor had no power to remove a member of the commission. St.1909, c. 448 (the amended city charter), § 19. Spec.St.1919, c. 150 (the statute which established the commission). Adie v. Mayor of Holyoke, 303 Mass. 295, 299, 302, 21 N.E.2d 377. Attorney Gen. v. Stratton, 194 Mass. 51, 55, 79 N.E. 1073, 9 L.R.A.,N.S., 572.

Section 56E is an exercise of the unquestioned power of the Legislature to shorten the term of a public office. Aide v. Mayor of Holyoke, 303 Mass. 295, 302-303, 21 N.E.2d 377. Taft v. Adams, 3 Gray, 126, 129-131. Collins v. Selectmen of Brookline, 325 Mass. 562, 565, 91 N.E.2d 747. Williams v. City Manager of Haverhill, 330 Mass. 14, 15, 100 N.E.2d 851. See Commonwealth v. Oliver, 342 Mass. 82, 83-84, 172 N.E.2d 241. In the Collins case (325 Mass. p. 565, 91 N.E.2d p. 749) we said of public officers (members of a housing authority) that 'the Legislature can * * * fix their tenure, * * * designate the causes for and method to be followed in their removal * * * change their duties, shorten or extend their terms of office, or even abolish * * * [the board], if deemed to be in the public interest.'

It follows necessarily that the creation of a new way ¹ of shortening the term deprives the office holder of nothing which he has a constitutional or statutory right to keep.

Hanscom v. Malden & Melrose Gas Light Co., 220 Mass. 1, 3, 107 N.E. 426, states as a 'general rule' that 'all statutes are prospective in their operation, unless an intention that they shall be retrospective appears by necessary implication.' Nevertheless, statutes 'relating to remedies and not affecting substantive rights * * * commonly are treated as operating retroactively * * *.' Ibid. Mulvey v. City of Boston, 197 Mass. 178, 181, 83 N.E. 402. Selectmen of Amesbury v. Citizens Elec. St. Ry., 199 Mass. 394, 395-396, 85 N.E. 419, 19 L.R.A.,N.S., 865. Devine's Case, 236 Mass. 588, 593-594, 129 N.E. 414. Ring v. City of Woburn, 311 Mass. 679, 682, 43 N.E.2d 8. Greenaway's Case, 319 Mass. 121, 123, 65 N.E.2d 16, ('constitutional questions do not arise'). Berkwitz, petitioner, 323 Mass. 41, 47, 80 N.E.2d 45. Attorney Gen. v. Flynn, 331 Mass. 413, 415, 120 N.E.2d 296. Lindberg v. State Tax Comm., 335 Mass. 141, 143-144, 138 N.E.2d 753. '[S]tatutes, * * * in the main remedial, in the broad as well as the narrow sense, are liberally interpreted in order to effectuate their purposes.' Wynn v. Board of Assessors of Boston, 281 Mass. 245, 249, 183 N.E. 528, 530. See Greenblatt, Judicial Limitations on Retroactive Civil Legislation, 51 N.W.U.L.Rev. 540, 550-551, 561.

Conversely, statutes which adversely affect substantive or vested rights are not construed to have retroactive effect unless the intent therefor necessarily appears. Martin L. Hall Co. v. Commonwealth, 215 Mass. 326, 329, 102 N.E. 364. Hanscom v. Malden & Melrose Gas Light Co., 220 Mass. 1, 6-7, 107 N.E. 426. Paraboschi v. Shaw, 258 Mass. 531, 533-534, 155 N.E. 445. Bernhardt v. Atlantic Fin. Corp., 311 Mass. 183, 190-191, 40 N.E.2d 713.

Section 56E, in providing for ending the term of commissioners who have done wrong in office, fills a gap in the statutory scheme in respect thereof. The sttute does not purport to restrict the appointing authority, in the exercise of the removing power, to events occurring after its enactment. '[M]isfeasance or malfeasance * * * or wilful neglect of duty' in the office prior to enactment of the statute show unfitness to continue in the office, quite as much as such conduct thereafter. The intention that the new remedy be fully effective is of course implicit.

Section 56E may reasonably be described as remedial in a broad sense. In any case the legislative objective and the absence of any private right to be adversely affected establish its retrospective application.

It is insignificant that § 56E increased the consequences of the plaintiff's prior wrongdoing. No punishment or penalty is imposed on the plaintiff in any constitutional sense by the operation of § 56E. An official has no right, vested or otherwise, to do wrong without an effect upon his term of office beyond that specified in the statutes when the wrong was done. Foster v. President, etc., Essex Bank, 16 Mass. 245, 273. Danforth v. Groton Water Co., 178 Mass. 472, 477, 59 N.E. 1033. See 2 Cooley, Constitutional Limitations (8th ed.) 771, 790-791, 792-794; Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv.L.Rev. 692, 696, 697-703, 720-722.

The creation by G.L. c. 164, §§ 56A-56D, of new obligations and restrictions in respect of contracts does not by implication limit the effect of § 56E. So far as Holliday v. Fields, 210 Ky. 179, 275 S.W. 642, relied on by the plaintiff, holds otherwise, we do not follow it. Action prior to the enactment of §§ 56A-56D which was then legal and proper could not be the basis...