Murphy v. Webster

131 Mass. 482, 1881 Mass. LEXIS 300

• Court: Massachusetts Supreme Judicial Court
• Decided: October 21, 1881
• Status: Published

Opinion

Gray, C. J.

By the charter of the city of Lawrence, St. 1853, e. 70, a municipal government is established, with complete and distinct legislative and executive departments, subordinate, of course, to the Legislature of the Commonwealth. The legislative power is vested in the city council, consisting of two branches, the board of aldermen and the common council— as the Legislature of the Commonwealth or of the nation consists of a Senate and a House of Representatives. The executive power is vested in the mayor or in the mayor and aider-men — in analogy to the constitutional provisions which confer corresponding powers upon the Governor and Council or the President and Senate.

The provision of § 7 of the charter, that the mayor “shall preside in the board of aldermen, and in convention of the two boards, but shall have a casting vote only,” makes him presiding officer of the board of aldermen — as the Vice-President of the United States is President of the Senate — and, like the provision of the later statute of 1876, c. 193, § 2, that “in any city where the mayor acts as presiding officer of the board of aider-men, he shall have no right to vote,” relates only to the exercise of the powers appertaining to him as such presiding officer, and not to the exercise of the powers inherent in him as mayor and “ chief executive officer of the city.”

The provisions on this subject are to be found in the subsequent sections of the charter. It is enacted in § 8, that “ the executive power of the said city generally, and the administrar tion of the police, with all the power heretofore vested in the selectmen of Lawrence, shall be vested in, and may be exercised by, the mayor and aldermen, as fully as if the same were herein specifically enumerated; ” and that “ the mayor and aldermen shall have full and exclusive power to appoint all police officers, and the same to remove at pleasure ; ” and in § 9, that “ in all cases in which appointments are directed to be made by the mayor and aldermen, the mayor shall have the exclusive power of nomination, being subject however to confirmation or rejection by the board of aldermen.” Similar provisions as to the nomination, appointment and removal of officers have since been made by general laws. Sts. 1867, c. 279; 1876, c. 80.

The power to appoint and the power to remove officers are in their nature executive powers. Unless otherwise provided by constitution or statute, the power of removal is incident to the power of appointment. Cujns est instituere, ejus est abrogare. Both the power of appointing and the power of removing police officers are in the clearest terms vested by the statutes in the mayor and aldermen, and not in the mayor alone nor in the board of aldermen alone. The mayor is the chief executive of the city and has the exclusive power of nomination. These premises afford strong ground for the inference that the power to initiate the removal of a police officer, like that of initiating his appointment, is exclusively in the mayor. Ex parte Hennen, 13 Pet. 230, 259. But, however that may be, the court is of opinion that no police officer, once nominated by the mayor and confirmed by the board of aldermen, can be removed by that board in the presence and without the consent of the mayor.

The decision in Chandler v. Lawrence, 128 Mass. 213, has no bearing upon this case. The charter of Lawrence, in the latter part of § 8, (not quoted in the report now before us,) authorizes all subordinate municipal officers, as to whom no provision is made in the charter or in any other statute, to be appointed or elected in such manner as the city council may by by-law determine. In Chandler v. Lawrence, the officer in question was such a subordinate officer, elected by the city council under a by-law which provided that he might be removed at its pleasure, and he had been removed by concurrent vote of the two branches of the city council, to which the assent of the mayor was not required.

The ordinances of the city do not undertake to, and could not, take away the power, conferred upon the mayor by statute, to participate in the removal, as well as in the appointment, of police officers. Nor can the ordinance which provides that the pay of police officers shall be fixed by the mayor and aldermen. warrant the' aldermen, the mayor non-concurring, in denying to police officers, lawfully holding their offices, all pay whatever.

It follows that neither of the orders of the board of aider-men on which the petitioners rely is of any legal authority or effect. Petition dismissed.