Home JAMES B. SWEENEY v. SELECTMEN OF NATICK & another.

202 Mass. 539

May 17, 1909 - June 22, 1909

Suffolk County

Present: Knowlton, C. J., Morton, Hammond, Loring, & Sheldon, JJ.

Natick. Municipal Corporations, Town meeting. Police. Civil Service. Words, "Annual town meeting," "Official ballot."

St. 1900, c. 133, providing for an extension to the police and fire forces of the town of Natick of the provisions of the civil service law upon the acceptance of the act by the town "at an annual town meeting or at any town meeting duly called for the purpose," was not accepted at an election on March 1, 1909, although a majority of the voters then voted in favor of its acceptance, since the vote was by precincts under St. 1907, c. 560, § 381, which duly had been accepted by the town and which provides that voting by precincts may be established for the election of town officers and for voting on the question of granting licenses for the sale of intoxicating liquors, but that other questions shall be in order only at the town meeting.

The words "official ballot" in St. 1900, c. 133, § 4, with regard to the acceptance by the town of Natick of the provisions of that chapter, mean "a ballot prepared for any election, caucus or primary by public authority and at public expense."

PETITION, filed on March 19, 1909, alleging that the respondents, the members of the board of selectmen of Natick, illegally had removed the petitioner from his office as a member of the police force, and praying for a writ of mandamus commanding them to reinstate him.

The case was heard by Morton, J. The facts are stated in the opinion. The single justice dismissed the petition and reported the case for determination by the full court.

The case was submitted on briefs.

M. F. Kennedy & A. W. Putnam, for the petitioner.

W. R. Bigelow, for the respondents.


Sheldon, J. The decision of this case depends wholly on the question whether St. 1900, c. 138, was in force in the town of

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Natick on March 12, 1909, when the respondents, the selectmen of that town, removed the petitioner from his position upon its police force. If it was then in force, his removal was unlawful and invalid. Logan v. Mayor & Aldermen of Lawrence, 201 Mass. 506 . If it was not then in force the respondents had the right to remove him from his position. The St. of 1906, c. 210, § 1, amended by St. 1907, c. 272, applies only to members of the police force in cities and to members of the district police, and does not protect the petitioner.

It was provided by § 4 of St . 1900, c. 133, as follows: "This act shall take effect upon its acceptance by a majority of the legal voters of said town present and voting thereon at an annual town meeting or at any town meeting duly called for the purpose. If the vote thereon is taken at an annual town meeting it shall be by official ballot in answer to the question, 'Shall an act passed by the General Court in the year nineteen hundred, to extend the civil service law to the police and fire forces of Natick, be accepted ?'" The only acceptance of this act by the legal voters of Natick was on March 1, 1909, when the vote was taken by precincts, under R. L. c. 11, § 353, now embodied in St. 1907, c. 560, § 381, the provisions of which had been accepted by the town of Natick on March 22, 1906. But by that act it was only voting for the election of town officers and upon the question of granting licenses for the sale of intoxicating liquors that was authorized to be done by precincts, and all other matters were to be in order only at a town meeting to be held within a time there specified. Accordingly it was held by this court that under similar provisions in St 1898, c. 548, § 349, afterwards codified into R. L.c.11, § 353, and now contained in St. 1907, c. 560, § 381, the St. of 1901, c. 78, for the extension of the provisions of the civil service law to the police and fire forces of towns that should accept that act, could not be accepted by a town by precinct voting. Ray v. De Butts, 180 Mass. 155 . In our opinion, that case is decisive upon the question before us. The provision in St. 1900, c. 133, § 4, that the vote shall be by official ballot does not warrant the inference that the vote could be taken by precincts. The "official ballot" seems to have been first provided for in our statutes by the St. of 1888, c. 436. It meant alike in 1900, when the act before us was

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passed, in 1906, when the town of Natick accepted the act for precinct voting, and in March, 1909, when the town attempted to accept the act of 1900, as it still means, "a ballot prepared for any election, caucus or primary by public authority and at public expense." St . 1898, c. 548, § 1. R. L. c. 11, § 1. St. 1907, c. 560, § 1.

We are obliged to conclude that there has been no valid acceptance by the legal voters of the town of Natick of St. 1900, c 133. It follows that this petition cannot be maintained.

Petition dismissed.