Young v. Mayor of Brockton

• Decision Date: 14 May 1963
• Citation: 190 N.E.2d 396,346 Mass. 123
• Parties: . Supreme Judicial Court of Massachusetts, Plymouth and Suffolk
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 396

190 N.E.2d 396

346 Mass. 123

Max YOUNG v. MAYOR OF BROCKTON.

Max YOUNG v. SUPERIOR COURT et al.

Supreme Judicial Court of Massachusetts, Plymouth and Suffolk.

Argued March 5, 1963.

Decided May 14, 1963.

Manuel Katz, Boston, for petitioner.

Pasquale J. Piscitelli, City Solicitor (George N. Asack, Asst. City Solicitor, with him), for the Mayor of Brockton & another, interveners.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER and KIRK, JJ.

WHITTEMORE, Justice.

The petitioner seeks an adjudication that he is a duly appointed member of the alcoholic liquor licensing board (licensing board) of the city of Brockton (G.L. c. 138, § 4, as amended through St.1958, c. 80 ¹) and hence that the action of the mayor purporting to remove him, without charges, reasons given or a hearing, was invalid (G.L. c. 138, § 5, as appearing in St.1933, Ex.Sess., c. 376, § 2 ²).

On the two petitions in the Superior Court, one for a writ of mandamus and the other for review under G.L. c. 138 § 5, orders were entered, respectively, for judgment for the respondent and for dismissal. The petitioner has appealed from the first order (G.L. c. 213, § 1D) and seeks a review of the second by a petition for a writ of certiorari. In the latter case the mayor and the city of Brockton were allowed to intervene. This was irregular but, though not properly parties, the mayor and the city might be heard. Marcus v. Commissioner of Pub. Safety, 255 Mass. 5, 8, 150 N.E. 903; Sharpe v. Registrars of Voters of Northampton, 342 Mass. 620, 622, 174 N.E.2d 648.

Errors of law may be reviewed on certiorari notwithstanding the provision of c. 138, § 5, that 'there shall be no appeal from the decision' of the Superior Court. MacKenzie v. School Committee of Ipswich, 342 Mass. 612, 614, 174 N.E.2d 657, and cases cited.

The issue is whether the petitioner's appointment in 1961, by the city manager (Brockton then having a Plan D charter ³ under G.L. c. 43, §§ 79-92A), was a nullity because not confirmed by the city council in accordance with G.L. c. 138, § 4.

This court has held that the provisions of G.L. c. 138, § 4, as to appointment and removal, are unaffected by provisions of city charters. Chapter 138, § 4, when adopted in 1933 (St.1933, Ex.Sess., c. 376, § 2), contained no requirement of confirmation of the mayor's appointments to the licensing board. In Crocker v. Deschenes, 287 Mass. 202, 191 N.E. 678 (1934), it was held that an unconfirmed appointment was valid notwithstanding G.L. c. 43, § 60 (Plan B), which provides, inter alia, that '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 * * * shall be appointed by the mayor, subject to confirmation by the city council * * *.' In McDonald v. Justices of Superior Court, 299 Mass. 321, 13 N.E.2d 16 (1938), it was held that the power of removal given to the mayor by G.L. c. 138, § 5, was not qualified by the requirement of Pittsfield's charter (St.1932, c. 280, § 30) that removal be subject to approval of the council. These holdings are founded primarily, we think, in the importance of uniformity in the administration of a State wide statute. The opinions stress the distinction between a licensing board and the usual 'municipal board.' Crocker case, supra, 287 Mass. 207, 191 N.E. 680; McDonald case, supra, 299 Mass. 324, 13 N.E.2d 17. Whether the office of licensing board member is a municipal office for some purposes (see Commonwealth v. Dowe, 315 Mass. 217, 222-224, 52 N.E.2d 406; Commonwealth v. Oliver, 342 Mass. 82, 84, 172 N.E.2d 241), the Crocker and McDonald cases establish that it is not a municipal office to which charter provisions in respect of confirmation of appointment or consent to removal apply.

Section 89 of c. 43 provided at the time of these decisions that the city manager should be 'the administrative head of the city government and shall be responsible for the administration of all departments.' Statute 1948, c. 459, § 8, expanded § 89 so that the city manager, with exceptions not relevant, is 'responsible for the administration of all departments, commissions, boards and offices of the city.' This amendment was without effect on the nature of the office of licensing board member

There is nothing in c. 43, § 92, cited by the petitioner, that supports his contention. The prohibitions and criminal penalties of § 92 apply to members of the city council who 'direct or request the appointment of any person to, or his removal from, office * * * or in any manner take part in the appointment or removal of officers and employees in that portion of the service of said city for whose administration the city manager is responsible.' The licensing board is not one of the 'boards * * * of the city' under these sections. Nothing in § 92 suggests otherwise and we do not reach the issue whether the mistaken assumption of power to confirm an appointment or approve a removal would be subject to its provisions.

The petitioner contends that, in any event, the requirement of § 4 for confirmation by the council, is, in effect, negated by G.L. c. 43, § 90, which gives to the city manager 'all the powers, rights and duties, other than legislative, had possessed or exercised, immediately prior to the adoption of this plan, by the mayor, board of aldermen, common council * * *.' We disagree.

We discern in c. 43, § 90, no legislative intention that the confirming function of the city council under c. 138, § 4, be transferred to the city manager. True, the present broad power of the city manager did not exist in 1933 and 1934 when c. 138, §§ 4 and 5, were enacted and (as to § 4) amended. Then the city manager's powers under § 90 did not include 'all * * * [those] exercised [theretofore] * * * by the * * * council.' ⁴ We think, however, that the subsequent amendment of c. 43, § 90, by St.1948, c. 459, § 8, did not intend a qualification of the requirements of c. 138, §§ 4 and 5. That amendment of § 90 was an enactment in respect of the 'ordinary and normal functions of municipal government * * *.' Crocker v. Deschenes, 287 Mass. 202, 210, 191 N.E. 678.

The differing provisions...