State v. Donovan

Foster, J.

By an express provision of tbe city charter of tbe city of Ellsworth, tbe mayor and aldermen bold their office for one year from tbe second Monday in March, and until others shall be elected in their places.

There having been no election of mayor at tbe annual election in March, 1896, tbe mayor then in office was in all respects legally acting until bis successor was chosen on tbe sixth day of April following, and was authorized to perform all tbe duties granted to tbe mayor by tbe city charter.

Tbe city charter provides tbat tbe mayor and aldermen shall elect or appoint subordinate officers on tbe second Monday of March, or as soon thereafter as conveniently may be. Tbat meeting, as appears from tbe records, was adjourned from time to time until tbe sixteenth day of March, when tbe mayor appointed tbe relator as city marshal, which appointment was confirmed by tbe board of aldermen. This appointment by .the mayor and confirmation by tbe board of aldermen was equivalent to an appointment by tbe mayor and aldermen as specified in tbe city charter.

Tbe relator was duly qualified and entered upon tbe discharge of bis duties.

On tbe sixth day of April, 1896, at a special election for tbe choice of mayor, Robert Gerry was elected as mayor. On tbe fourth day of May, 1896, at a regular meeting of the city government, the mayor nominated the respondent as city marshal, which nomination the board of aldermen refused to confirm. Thereupon the mayor appointed the respondent as “acting city marshal,” who took the oath of office, and proceeded to exercise the authority and perform the duties incident to the office of city marshal.'

When the appointment of respondent was made there was no vacancy in the office of city marshal. This fact the mayor must have understood, for afterwards on May 20, 1896, he caused a written notice of removal to be served on the relator.

By section 4 of the city charter, “ The mayor and aldermen may remove officers, when in their opinion sufficient cause for removal exists.”

Under this section only have the mayor and aldermen power to remove officers elected, or appointed for a fixed term, before the expiration of that term, and even then the removal must be for cause.

The removal of an officer for cause is held to be a judicial act. The mayor and aldermen must act together, and the officer to be removed is entitled to notice and hearing. Andrews v. King, 77 Maine, 224; Ham v. Boston Board of Police, 142 Mass. 90.

No action has ever been taken by the mayor and aldermen upon the question of removal of the relator. The matter has never been brought officially before the board of aldermen. The mayor acted upon his own motion and attempted to remove the relator without formulating any charges against him or granting him the privilege of a hearing.

The mayor’s only claim for any such authority to remove officers upon his own motion, without cause, and without the concurrence of the board of aldermen, is under the last clause of R. S., § 34, c. 3, which reads as follows: — “Whenever appointments to office are directed or authorized to be made by the mayor and aldermen of cities, they may be made by the mayor with the consent of the aldermen, and such officers may be removed by the mayor.”

It is an established rule in the construction of statutes that a local statute enacted for a particular municipality, for reasons satisfactory to the legislature, is intended to be exceptional and for the benefit of such municipality. Black on Interpretation of Statutes, 116.

In accordance with this principle, general acts are held not to repeal the provisions of charters granted to municipal corporations though conflicting with the general provisions, unless the words of the general statute are so strong and imperative as to render it manifest that the intention of the legislature cannot be otherwise satisfied. Endlich on Int. of Statutes.

It appears, however, that the special act of the legislature incorporating the city of Ellsworth was passed in 1869, while the general statute, found in § 34 of c. 3, R. S., was enacted in 1866. The re-enactment of the general statute in 1895 was for the purpose of adopting an amendment not affecting the question here presented, and discloses no intention to repeal the special provisions of municipal charters granted after 1866. State v. Cleland, 68 Maine, 258.

The legislature must be presumed to have had in mind the act of 1866 when granting the city charter in 1869, and to have intended the substitution of the latter for the former in prescribing the methods of removal. Weeks v. Walcott, 15 Gray, 54; Smith v. Sullivan, 71 Maine, 150, 152, 153. It was in accordance with this doctrine that the court, in Starbird v. Brown, 84 Maine, 238, held a prior private act to be so amended by a subsequent general act as to render it conformable with the latter. “The test is,” say the court, “whether a subsequent legislative act is so directly and positively repugnant to the former act that the two cannot consistently stand together. Is the repugnancy so great that the legislative intent to amend or repeal is evident?” In this case, as in that, the legislative intent to amend is evident, and that intent must prevail.

It follows that the question here presented must be settled and the rights of the parties determined in accordance with the provisions of the city charter of Ellsworth. Under the rule there prescribed for the appointment and removal of subordinate officers, the city marshal can only be appointed or removed by the mayor by and with tbe advice and consent of tbe aldermen. He cannot be appointed or removed by the act of tbe mayor alone.

This conclusion will be found to be fully supported by tbe Massachusetts court in tbe recent case of Copeland v. Springfield, 166 Mass. 498, 504, citing a large number of authorities. Tbat court says: — “ Tbe legislature could repeal all or any of tbe special or tbe general acts which bave been cited, either wholly or as affecting cities alone, and could set up tbe provisions of stat. 1895, c. 444, as tbe only rules concerning tbe matters dealt with to be thereafter followed in any city. If it clearly appears tbat it was intended to impose upon all cities tbe system of tbat statute as tbe only rule for constructing and completing sidewalks, and of making assessments for their cost, tbat intention is to bave effect, although tbe repugnant rules which were previously in force in any city are found in its charter, or in some other special act granted to its inhabitants. But, in accordance with tbe rule of construction stated in Brown v. Lowell, 8 Met. 172, when special acts growing out of tbe peculiar wants, condition, and circumstances of tbe locality bave been granted to a particular place, and afterwards a general law is passed having some of tbe same purposes in view, and extending them to places in which tbe special acts bad no operation, whether tbe general act is an implied repeal of all repugnant special acts depends upon a careful comparison of tbe statutes and tbe objects intended to be accomplished; and, speaking generally, it requires ‘pretty strong terms in tbe general act, showing tbat it was intended to supercede tbe special acts, in order to bold it to be such a repeal.’ ”

Tbe act of tbe mayor in attempting to remove tbe relator from tbe office of city marshal was ineffectual because not done by and with tbe advice and consent of tbe aldermen. There being no vacancy in tbe office of city marshal, tbe act of tbe mayor in attempting to appoint tbe respondent to that office was unauthorized and illegal; and in any event was wholly ineffectual because not done by and with tbe advice and consent of tbe board of aldermen.

Hence the relator, having been legally appointed to the office of city marshal of Ellsworth by and with the advice and consent of the board of aldermen, and not having been legally removed therefrom, is now entitled to said office. The respondent is not entitled to it.

Exceptions overruled.