Petti v. Lyons
Petti v. Lyons
Opinion of the Court
The only question raised in this action is whether the plaintiff, Petti, has been entitled during the relevant period to occupy the office of city clerk of the city of Brockton.
The plaintiff’s entitlement to the office of city clerk depends on the controlling statutes. Brockton was originally incorporated as a city by St. 1881, c. 192. This city charter provided in § 3 that “the municipal year shall begin on the
Under that statute the city clerk’s three-year term thus began with the election by the city council in January of
In accordance with the pattern established by that statute of successive three-year terms beginning in January of 1902, the city council would have been expected to elect a city clerk in January of 1905, and in every third January thereafter until January of 1980,® unless the statutory pattern was vitiated by (a) the adoption of a Plan B charter by the city on November 3, 1957,
(a) We see nothing in the adoption of Plan B (G. L. c. 43, §§ 1-45 and 56-63) which affects the statutory pattern. In this respect the case is very much like Attorney Gen, v. Loomis, 225 Mass. 372 (1916), in which the city of Medford ^accepted the 1901 statute and thereafter, on the first Monday of January, 1904, a revised charter took effect. At that point the city clerk, one Joyce, who had been elected in January, 1902, for a three-year term, was reelected, purportedly for a three-year term beginning in January, 1904, and ending in January, 1907. The court held, however (at 375), that his term ended not in January, 1907, but in “January, 1905, that is, three years from January, 1902”. Therefore,
Also in the case at bar, the adoption of Plan B by the city of Brockton did not vitiate the statutory pattern of the 1901 statute. While G. L. c. 43, § 11, provides that the adoption of a new plan of government “shall supersede the provisions of its charter,” it does not supersede “general and special laws relating thereto” unless they are “inconsistent” with the new plan. We see no such inconsistency between the provisions of Plan B and the 1901 statute (now G. L. c. 41, § 12; see n.5). We therefore read them together. See Attorney Gen. v. Loomis, 225 Mass, at 375. Indeed, G. L. c. 43, § 18(3), explicitly carries forward the pattern previously established. It provides in the first paragraph for a three-year term and in the second paragraph that “[t]he person holding the office of city clerk at the time when any of the plans . . . has been adopted . . . shall continue to hold office for the term for which he was elected.” Further, the provision in the 1881 statute for the organization of the municipal government on the first Monday in January following a municipal election is also found in G. L. c. 43, § 17.
(b) Nor do we see anything which vitiates the statutory pattern in the grant of tenure to Clifford by St. 1961, c. 511, accepted by the city in the election of November, 1961.
Accordingly, when Lyons was elected on November 3, 1971, to succeed Clifford, that election was for the unexpired term until January, 1974. After that day Lyons held over until his election in October, 1974, which could, however, only entitle him to the remainder of the unexpired term until January, 1977. Thereafter, he held over, and there was no bar to Petti’s election on December 27, 1977, to fill the unexpired term which, following the statutory pattern, ran until January, 1980. Thus, as there was no vacancy to fill in January, 1978, Lyons’ election at that time gave him no right to the office.
So ordered.
No question has been raised concerning the compensation attached to the office during the relevant period. Neither the city nor its treasurer has been joined as a party.
The use of the word “elected” instead of “purportedly elected” here and elsewhere in this opinion is not intended to indicate, without more, our view as to the validity or invalidity of the city council’s action.
There were seven votes for Petti and four votes for Lyons. The seven councillors who voted for Petti had been defeated at the municipal election held in November, 1977. Those who voted against Petti had been returned to the city council.
We note that the defendants in their answer in the case at bar asked that it be dismissed because of the pendency of Lyons’ action against the city council. That issue has not been pressed, and we need not discuss it.
This was codified in the Revised Laws (R.L. [1902] c. 26, § 15) and thereafter in the General Laws (G. L. [1921] c. 41, § 12) and now reads: “In cities which accepted chapter three hundred and thirty-two of the acts of nineteen hundred and one, the term of office of the city clerk shall be three years from the date of his election or appointment. . . . [T]he clerk shall serve until the qualification of his successor unless sooner removed; and a person appointed to fill a vacancy in the office of city clerk shall hold the office until the end of the unexpired term of his predecessor.”
We do not attribute any significance to the changes in phraseology in the subsequent codifications of this statute. We see no legislative intent in those codifications to tamper with the term of office of city clerk. See Doggett v. Hooper, 306 Mass. 129, 132 (1940); Scaccia v. Boston Elev. Ry., 317 Mass. 245, 251 (1944); Carter v. Burgess, 323 Mass. 295, 300-301 (1948).
See Attorney Gen. v. Loomis, 225 Mass. 372, 376 (1916): “When a time is fixed by statute for the election or appointment of an officer, it is to be presumed that the election or appointment will be made according to law, although such provision may be directory rather than mandatory, and the statute as a whole is to be construed on that presumption.” See also Rutter v. White, 204 Mass. 59, 61-62 (1910).
This date appears in Petti’s affidavit; the defendants’ brief states that Brockton first adopted Plan B in 1938, that it remained in effect until 1955, when Plan D was adopted, and that in 1959 Brockton voted to reinstate Plan B. Nothing turns on this discrepancy.
Nothing turns on Petti’s failure to take the oath when he was elected, in view of the interlocutory order by the Probate Court that Lyons continue to act as city clerk (see 559, supra). We do not intend to cast any doubt on the validity of Lyons’ acts as clerk while he was occupying the office pursuant to that order.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.