Home MARGARET H. SPENGLER & another [Note 1] vs. TOWN CLERK OF ARLINGTON & another. [Note 2]

364 Mass. 270

October 4, 1973 - November 7, 1973

Middlesex County


St. 1952, c. 503, "An Act establishing a town manager form of government for the town of Arlington," Section 9, as amended by St. 1956, c. 634, Section 2, which provides that a "member of the finance committee, shall, during the term for which he was . . . appointed, be ineligible . . . to hold any other town office, except the office of town meeting member," did not prevent a former finance committee member, who was appointed to the committee for a term ending after 1973, but who was removed from the committee in February, 1973, for failure to attend three consecutive meetings, from being eligible to be a candidate for selectman at the annual town election held in March, 1973. [270-271]

PETITION for a writ of mandamus filed in the Superior Court on February 12, 1973

The case was heard by Zarrow, J.

Michael J. Monahan for the intervener John P. Donahue.

Walter H. McLaughlin, Jr. (Bruce Oravec with him) for the petitioners.

Joseph H. Purcell, Town Counsel, for the Town Clerk of Arlington, submitted a brief.

BRAUCHER, J. This is a companion case to Rugg v. Town Clerk of Arlington, ante, 264 (1973). The petitioner Spengler, like Rugg, was appointed to the finance committee of the town of Arlington for a term ending after 1973, and was removed from the finance committee in February, 1973,

Page 271

for failure to attend three consecutive meetings. She sought to run for the office of selectman at the annual town election to be held on March 3, 1973. Her candidacy presented the same question as Rugg's candidacy under St. 1952, c. 503, Section 9, as amended by St. 1956, c. 634, Section 2.

The petitioners in this case sought a writ of mandamus like that sought in the Rugg case. The two cases followed the same course and were tried and decided together, and the appeals and proceedings incident to appeal also followed the same course. We are informed by counsel that Spengler's petition for an injunction was denied by the same judge of the United States District Court for the District of Massachusetts who denied Rugg's petition, that she too organized a "sticker" campaign, and that she received the highest number of votes of the four candidates for two selectman positions.

Spengler presented one contention not made in the Rugg case. Before her appointment to the finance committee, the judge found, she was appointed to a school facilities survey committee of the town, and she has served thereon to the present time. She contended that under the town by-laws she therefore could not be a member of the finance committee and hence was not ineligible to run for the office of selectman. The judge did not rule on that contention, and we do not rule on it. We do, however, note that "the law never looks with favor upon a claimant who must rely upon a past dereliction in order to maintain a present right." See State ex rel. Chealander v. Carroll, 57 Wash. 202, 208 (1910). The respondents contend that membership on the school facilities survey committee was not such an "office" as to disqualify her from the finance committee.

Otherwise this case is identical with the Rugg case and is controlled by it. The case is therefore remanded to the Superior Court for further proceedings consistent with the opinion in Rugg v. Town Clerk of Arlington, ante, 264.

So ordered.


[Note 1] William E. Shea, a registered voter.

[Note 2] John P. Donahue.