Damon v. Selectmen of Framingham , 195 Mass. 72 ( 1907 )

Knowlton, C. J.

This is a petition for a writ of mandamus to compel the selectmen of Framingham to call a meeting of their members, for the purpose of appointing a committee of fifteen persons to examine proposed appropriations and to report the facts relating to them, with their recommendations thereon, in accordance with a vote of the town, passed on March 11, 1902, making it the duty of the selectmen to appoint such a committee before the first day of April in each year. Two of the three selectmen, without the presence of the third, held a meeting for this purpose on March 31, 1906, and assumed to appoint such a committee. The petitioner also prays that the writ may command the persons appointed to refrain from official action under the appointment. The petitioner is the member of the board of selectmen who was absent from the meeting referred to. The meeting was held on a Saturday evening, and not until about the middle of that day had the holding of it been contemplated. At that time the petitioner was in Boston, and in the afternoon, when the other members of the board first attempted to give him notice of the meeting, they-found it impossible to reach him, and so in the evening determined to go on without him. The justice who heard the case ruled, upon the facts found by him, that the meeting of the selectmen on that evening was not legal, and that the appointment of the other respondents as members of the committee was invalid. He held that the petitioner might be allowed to have a writ of mandamus as prayed for, and the respondents excepted.

So far as the issuing of such a writ is a matter of discretion, the bill of exceptions brings no question to this court. The only question before us is whether the ruling that the meeting of the selectmen was illegal and the appointment of the committee invalid was erroneous.

The selectmen are public officers who are to act together as a board. Ordinarily they cannot act legally without a meeting of all the members, or a reasonable notice to all, such as to give every member, if he pays proper attention to his public duties, an opportunity to be present with the others and participate in the business before the board. Sometimes the kind of notice to be given is prescribed by by-laws or otherwise, and sometimes it is left to the reasonable determination of the officer giving the notice. In the present case no rules or by-laws had been adopted, and there is no statute that prescribes the method of giving notice.

Assuming for the moment that the board could not appoint a committee without taking reasonable measures to give all of their members an opportunity to be present and take part in the appointment, the justice was right in finding that no sufficient notice was given. There was no emergency that called for immediate action by the board, although the vote of the town directed the appointment of the committee to be made before the first day of April, and the two selectmen thought it must be made not later than March 81. The petitioner’s absence from the town was for a very short time, and if the meeting had been called earlier it would have been easy to give him notice. While the failure to arrange for it seasonably and the subsequent action without him were the result of an innocent mistake, the appointment was made by a part of the board without giving the other part an opportunity to be present.

The general rule that such a board of public officers should act jointly, and that all should have an opportunity to participate in their action, is unanimously recognized. Merrill v. Berkshire, 11 Pick. 269. Parsons v. Pettingell, 11 Allen, 507. Clark v. Cushman, 5 Mass. 505. Williams v. Lunenburg School District, 21 Pick. 75. Murdough v. Revere, 165 Mass. 109. Wiggin v. Freewill Baptist Church, 8 Met. 301, 312. Easthampton v. Burman, 136 Mass. 521.

The reason for the rule applies with peculiar force to business of the kind transacted by the majority of the board in the present case. The selection of an important committee of fifteen members calls for conference and deliberation. We have no hesitation in holding that the appointment of this committee was illegal.

The provision of the R. L. c. 8, § 4, cl. 5, that joint authority given to a board of public officers may be exercised by a majority of such board, does not affect the requirement that all the members should have notice and an opportunity to act.

We do not find it necessary to determine whether there are any of the numerous executive duties of selectmen that can legally be performed by a majority, acting without a meeting and without notice to the minority. It has been decided that a warrant for a town meeting must be signed by individual members of the board. Reynolds v. New Salem, 6 Met. 340. As a general rule their action must be joint, after notice to all.

Nor do we consider what notice or attempt to give notice in all conceivable cases of emergency, or of difficulty in giving notice, would be enough to authorize a majority to act in the absence of the minority. A selectman might be absent from his town, at a long distance, for a considerable time, or he might be so seriously ill as to be incapable of receiving notice. In such a case pressing public business ought not to wait for his return or recovery. In the absence of by-laws or orders prescribing the notice to be given, we can state no better general rule than that every member of such a board should have notice of all its meetings, if by reasonable effort it is possible to give him notice, and that reasonable measures should always be taken to notify all.

Peremptory writ of mandamus to issue.