Williams v. City Manager of Haverhill

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Before QUA; RONAN
• Citation: Williams v. City Manager of Haverhill, 110 N.E.2d 851, 330 Mass. 14 (Mass. 1953)
• Decision Date: 26 February 1953
• Parties: WILLIAMS v. CITY MANAGER OF HAVERHILL et al.

Page 851

110 N.E.2d 851

330 Mass. 14

WILLIAMS v. CITY MANAGER OF HAVERHILL et al.

Supreme Judicial Court of Massachusetts, Essex.

Argued Feb. 2, 1953.

Decided Feb. 26, 1953.

Arthur A. Thomson, Lawrence, for petitioner.

Salvatore Faraci, City Sol., Haverhill, for respondents.

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

RONAN, Justice.

This is an appeal from a judgment dismissing a petition for a writ of mandamus brought to reinstate the petitioner to the office of assessor of the city of Haverhill and for damages.

The Plan D form of government, G.L. (Ter.Ed.) c. 43, §§ 1-45, inclusive, as amended, and §§ 79 to 92A, inclusive, as appearing in St.1948, c. 459, § 8, became effective in Haverhill on January 7, 1952. The respondent city manager, one McLean, was appointed as such on this last-mentioned day and has since occupied that office. The petitioner Williams on January 2, 1950, was appointed a member of the board of assessors for the term of three years and was acting in that capacity on March 6, 1952, when he received a letter from the city manager notifying him that he was removed from his office for certain reasons which were stated therein. A written request by the petitioner for specifications and for a hearing was ignored by the city manager.

The petitioner contends that the city manager had no power to direct and control him in the performance of his official duties, that the board of assessors was not a department for the proper administration of which the city manager was responsible under the new charter, and that consequently the latter was not empowered to remove the petitioner. It is true that an assessor is charged with the performance of the duties and the exercise of the authority conferred upon him by the statutes, and that other and additional duties cannot be imposed upon him, Walker v. Cook, 129 Mass. 577; Hathaway v. City of Everett, 205 Mass. 246, 91 N.E. 296; Cox v. Segee, 206 Mass. 380, 92 N.E. 620, but while as argued by the petitioner, he is 'a public officer,' he is elected or appointed by certain officials of a municipality or by the inhabitants of the community where his duties are performed and by which he is paid, and so in a sense has been regarded as a municipal officer. Dowling v. Board of Assessors of City of Boston, 268 Mass. 480, 484-485, 168 N.E. 73; Hobart v. Commissioner of Corporations & Taxation, 311 Mass. 341, 344, 41 N.E.2d 38; Commonwealth v. Dowe, 315 Mass. 217, 223, 52 N.E.2d 406. Assessors, like other public officers not provided for in our Constitution, are subject to the right of the Legislature to create or abolish the office, fix its tenure and compensation, designate its duties and powers, and provide for the election, appointment and removal of the incumbent. Taft v. Adams, 3 Gray, 126, 130; Attorney General v. Stratton, 194 Mass. 51, 54, 79 N.E. 1073, 9 L.R.A.,N.S., 572; Johnson v. City of Quincy, 198 Mass. 411, 84 N.E. 606; Attorney General v. Tufts, 239 Mass. 458, 131 N.E. 573, 132 N.E. 322, 17 A.L.R. 274. It is not unusual in accordance with the present trend in municipal government to centralize power and responsibility for the proper and faithful conduct of municipal officers and departments upon a mayor and more recently upon a city manager. That trend is exemplified in the Paln D form of city charter. The city manager is by § 89 of the charter designated the chief administrative officer of the city and is responsible for the administration of all departments, commissions, boards, and offices of the city, whether established before its adoption of this plan or thereafter, except that of the city clerk, city auditor, any official appointed by the Governor, or anybody elected by the voters of the city. We are of opinion that the petitioner was a member of the assessing department under Plan D, see Bryson v. Mayor of Waltham, 329 Mass. 524, 109 N.E.2d 452, and that that department is included among those for whose administration the city manager is responsible. The city manager is authorized by § 90 of the new charter to 'make all appointments and removals in the departments, commissions, boards and offices of the city for whose administration he is responsible, except as otherwise provided in this chapter * * *.' So far as assessors are concerned, there is nothing to the contrary appearing in the charter. Ray v. Mayor of Everett, 328 Mass. 305, 103 N.E.2d 269. The city manager had the power to remove an assessor.

The principal contention of the petitioner is that he could not be removed until he had been furnished with a copy of the charges preferred against him and an opportunity to be heard. He relies upon G.L. (Ter.Ed.) c. 39, § 8A, inserted by St.1950, c. 132, § 1, which reads as follows: 'Unless otherwise provided in any general law or in any special law relating to a city, any officer or official appointed or elected by the city council may be removed by said council for cause after a public hearing, written notice of which shall be given said officer or official fourteen days, at least, prior to the date thereof. This section shall not apply to any officer or official who is subject to the provisions of chapter thirty-one.' He also relies upon an ordinance which in substance provides that any officer elected or appointed by the municipal council whose removal is not otherwise provided for by law or ordinance may be removed for cause by the council after notice and hearing.

The petitioner argues that under the original charter, St.1869, c. 61, with its amendments, and under the revised charter, St.1908, c. 574, giving the city a commission form of government, the power to elect assessors was conferred upon the city council by § 20 of the old charter and was transferred upon the adoption of the commission form of government to the municipal council, that consequently both the statute and the ordinance were in full force and effect when the city manager notified the petitioner that he was removed on March 6, 1952, and that as neither the statute nor the ordinance was complied with the removal was ineffective.

The statute, G.L. (Ter.Ed.) c. 39, § 8A, only applies to cities not subject to some provisions of a general or special law governing the removal of officers who were elected or appointed by the city council other than those in the classified civil service. It well may be that one of the purpoes of the statute is to designate the body having the power of removal and to define the method to be employed in cities so that a city council having the...