Home MAX YOUNG vs. MAYOR OF BROCKTON (and a companion case [Note 1]).

346 Mass. 123

March 5, 1963 - May 14, 1963

Plymouth, Suffolk. County

Present: WILKINS, C.J., SPALDING, WHITTEMORE, CUTTER, & KIRK, JJ.

Although it was irregular to allow the mayor of a city and the city to intervene in a certiorari proceeding against the Superior Court to review an order of that court dismissing a petition under G. L. c. 138, Section 5, for review of the mayor's removal of the petitioner as a member of the city's alcoholic liquor licensing board, it was proper to allow the mayor and the city to be heard. [124]

Certiorari lies against the Superior Court to correct errors of law in a proceeding in that court under G. L. c. 138, Section 5, for review of a removal of a member of a city's alcoholic liquor licensing board, notwithstanding the provision of Section 5 that "there shall be no appeal from the decision" of the Superior Court. [124]

An appointment to membership on the alcoholic liquor licensing board of a city having a Plan D charter by the city manager, which was not confirmed by the city council as required by G. L. c. 138, Section 4, as amended through St. 1958, c. 80, was a nullity; nothing in G. L. c. 43, Sections 89, 90, or 92 indicates that the requirement of confirmation in c. 138, Section 4, as amended, should not prevail. [124-127]

PETITION for a writ of mandamus filed in the Superior Court on December 18, 1961.

The petitioner appealed from an order by Dewing, J., for judgment "for the respondent dismissing the petition."

PETITION for a writ of certiorari filed in the Supreme Judicial Court for the county of Suffolk on October 11, 1962.

The case was reserved and reported by Spiegel, J., without decision.

Manuel Katz for the petitioner.

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

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WHITTEMORE, J. 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, Section 4, as amended through St. 1958, c. 80 [Note 2]) 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, Section 5, as appearing in St. 1933, c. 376, Section 2 [Note 3]).

On the two petitions in the Superior Court, one for a writ of mandamus and the other for review under G. L. c. 138, Section 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, Section 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. Sharpe v. Registrars of Voters of Northampton, 342 Mass. 620 , 622.

Errors of law may be reviewed on certiorari notwithstanding the provision of c. 138, Section 5, that "there shall be no appeal from the decision" of the Superior Court. MacKenzie v. School Comm. of Ipswich, 342 Mass. 612 , 614, and cases cited.

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

This court has held that the provisions of G. L. c. 138, Section 4, as to appointment and removal, are unaffected by provisions of city charters. Chapter 138, Section 4, when adopted in 1933 (St. 1933, c. 376, Section 2), contained no requirement of

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confirmation of the mayor's appointments to the licensing board. In Crocker v. Deschenes, 287 Mass. 202 (1934), it was held that an unconfirmed appointment was valid notwithstanding G. L. c. 43, Section 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. Superior Court, 299 Mass. 321 (1938), it was held that the power of removal given to the mayor by G. L. c. 138, Section 5, was not qualified by the requirement of Pittsfield's charter (St. 1932, c. 280, Section 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, 207. McDonald case, supra, 324. Whether the office of licensing board member is a municipal office for some purposes (see Commonwealth v. Dowe, 315 Mass. 217 , 222-224; Commonwealth v. Oliver, 342 Mass. 82 , 84), 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, Section 8, expanded Section 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, Section 92, cited by the petitioner, that supports his contention. The prohibitions and criminal penalties of Section 92 apply to members of the city council who "direct or request the appointment of any person to, or his

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removal from, office . . . or in any manner take part in the appointment or removal of officers or 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 Section 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 Section 4 for confirmation by the council, is, in effect, negated by G. L. c. 43, Section 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, Section 90, no legislative intention that the confirming function of the city council under c. 138, Section 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, Sections 4 and 5, were enacted and (as to Section 4) amended. Then the city manager's powers under Section 90 did not include "all . . . [those] exercised [theretofore] . . . by the . . . council." [Note 5] We think, however, that the subsequent amendment of c. 43, Section 90, by St. 1948, c. 459, Section 8, did not intend a qualification of the requirements of c. 138, Sections 4 and 5. That amendment of Section 90 was an enactment in respect of the "ordinary and normal functions of municipal government . . .." Crocker v. Deschenes, 287 Mass. 202 , 210.

The differing provisions of the several charter plans in 1933 and 1934 in respect of appointments and confirmation

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which, except as to Plans D and E, are now in effect without change, tend to confirm that the Legislature in enacting c. 138, Sections 4 and 5 in 1933, and amending Section 4 in 1934, intended that the essence of the requirements of Sections 4 and 5 prevail in all cities regardless of the local charter plan. Plan D at that time, as noted, left more power with the council than is now the case. Under Plan A no confirmation of the mayor's municipal appointments was required (c. 43, Section 52). Plan B called for confirmation (Section 60). Plan C, with its commission form of government, called for appointments by that one of the five commissioners who was in charge of the particular department in which the appointment was made, subject to confirmation (Section 76), and the mayor was the chief executive officer and the commissioner of administration (Section 74). Under Plan E, first enacted by St. 1938, c. 378, Section 15, the city manager by c. 43, Section 104, has powers like those given under Plan D by Section 90.

We rule that G. L. c. 138, Section 4, calls for confirmation by the city council regardless of the lack of power of the council under c. 43 to confirm municipal appointments, and regardless of the grant by c. 43, Section 90, of the council's former powers to the manager.

It does not follow from our construction of c. 138 that in Plan D and Plan E cities appointments under G. L. c. 138, Section 4, must be made by the mayor rather than the city manager. The essential requirements of Sections 4 and 5 are appointment by the city's chief executive and confirmation by its legislative body and in such cities the city manager is the chief executive.

Order for judgment for the respondent in mandamus affirmed.

Petition for writ of certiorari dismissed.


FOOTNOTES

[Note 1] The companion case is Max Young vs. Superior Court & others.

[Note 2] "In each city which is not exempt by the provisions of section ten there shall be a licensing board appointed by the mayor, subject to confirmation by the board of aldermen or, if there is no such board, by the city council . . . ."

[Note 3] The members "may be removed by the mayor for cause, after charges preferred, reasonable notice thereof, and a hearing thereon; and the mayor shall, in the order of removal, state his reasons therefor."

[Note 4] The Plan D charter was superseded in Brockton on January 1, 1962, by Plan B (G. L. c. 43, Sections 56-63) under which the mayor is the "chief executive officer."

[Note 5] In 1934 Section 90 provided: "The city manager shall be the administrative head of the city government, see that within the city the laws of the commonwealth and the ordinances, resolutions and regulations of the council are faithfully executed, attend all meetings of the council, and recommend for adoption such measures as he shall deem expedient, make reports to the council from time to time upon the affairs of the city, keep the council fully advised of the city's financial condition and its future financial needs and appoint and remove all heads of departments, superintendents and other employees of the city."