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superintendents, deputies, executive officers and persons other than the chief superintendent of departments performing any of the duties of a superintendent in the service of any city." The fact that the position is described as that of "assistant commissioner" instead of "assistant superintendent" is immaterial, since the duties must be analogous, and in my opinion such assistant commissioner is within the classified service of the city.
The only remaining question is, whether the position is by statute exempt from civil service rules. It is not so exempt by R. L., c. 19, § 9, which is the general provision for exemptions, nor, in my opinion, is it exempt by any special statutory provision. St. 1895, c. 449, § 14, provides that "the institutions department shall be under the charge of one institutions commis-. sioner." Section 20 provides that:
The officer or board in charge of any department created by this act . may, with the approval of the mayor, appoint not exceeding three assistants . . . ; and such appointment shall be exempt from the laws relating to civil service in the commonwealth and the cities and towns thereof.
St. 1897, c. 395, § 5, after changing the name of the department, provides that "the penal institutions commissioner may, with the approval of said mayor, appoint one assistant." St. 1909, c. 486, § 15, repeals St. 1895, c. 449, § 20, except as to the election department. The office of assistant commissioner is, therefore, created by St. 1897, c. 395, and as to it there is no specific provision for exemption from the civil service.
CIVIL SERVICE OFFICERS WHOSE APPOINTMENT IS SUBJECT TO
Constables whose appointments must be confirmed by the city council of the city
You have requested my opinion as to whether constables To the whose appointments must be confirmed by the city council of Commission. the city of Boston are officers within the provisions of R. L., July 21.
c. 19, § 9, and therefore exempt from civil service classification.
R. L., c. 19, §§ 6 to 8, inclusive, authorize the making of rules regulating the selection of officers and employees in the service of the cities of the Commonwealth. Under authority of these sections certain rules have been made, one of which places within the classified service "constables in the service of any city receiving pay other than the statutory fees." Civil service rule 7, class 18. Constables in the service of the city of Boston receiving pay other than the statutory fees, are, therefore, within the civil service classification, unless expressly excepted therefrom by statute.
R. L., c. 19, § 9, provides that:
Judicial officers and officers elected by the people or by a city council, or whose appointment is subject to confirmation by the executive council or city council of any city, . . . police and fire commissioners and chief marshals, or chiefs of police and fire departments, shall not be affected as to their selection or appointment by any rules made as aforesaid; but, with the above exception, such rules shall apply to members of police and fire departments.
The constables in question are not expressly excepted from the application of the rules unless they are "officers . . . whose appointment is subject to confirmation by the .. city
In towns, "the selectmen may appoint as many constables as in their opinion may be necessary." R. L., c. 25, § 87. In cities, the mayor and aldermen have the powers of selectmen. R. L., c. 26, § 2. When an appointment is to be made by the mayor and aldermen, the mayor has "the exclusive power of nomination, subject to confirmation or rejection by the aldermen." R. L., c. 26, § 8. In the city of Boston, the mayor and city council have the powers of a board of aldermen. St. 1909, c. 486, § 1.
The principal duty of a constable is the service of process, both criminal and civil. A constable may, however, serve civil process only if he has given the statutory bond. R. L., c. 25, §§ 88 to 93, inclusive.
In view of the statutory provisions referred to, I am of opinion that a constable is an officer within the meaning of the word as used in R. L., c. 19, § 9. See Leavitt v. Leavitt, 135 Mass. 191, 193; Brown v. Russell, 166 Mass. 14, 26; AttorneyGeneral v. Tillinghast, 203 Mass. 539. "His appointment is subject to confirmation by the . . . city council" of Boston. Attorney-General v. Douglass, 195 Mass. 35, 38. The constables in question are, therefore, in my judgment, exempt from civil service classification.
The opinion which I have expressed applies to constables, but not to members of the police department. Police officers are, in general, classified within civil service rules. See rule 7, classes 14 to 17, inclusive. The statute which provides for exemptions from the application of the civil service rules further provides that "such rules shall apply to members of police . . . departments." R. L., c. 19, § 9. Moreover, in the city of Boston not only regular and reserve police, but also special police, are appointed by the police commissioner and not by the mayor and city council. St. 1887, c. 177; St. 1898, c. 282; St. 1906, c. 291, § 10.
CITY OR TOWN MONEY BORROWED IN ANTICIPATION OF TAXES LIMIT OF AUTHORITY TO ISSUE NOTES IN PAYMENT. Under the provisions of R. L., c. 27, § 6, authorizing a city or town, by a majority vote, to "incur debts for temporary loans in anticipation of the taxes of the municipal year in which such debts are incurred and expressly made payable therefrom by such vote," a town may not legally issue notes for debts incurred in anticipation of taxes in any one year when such debts exceed in the aggregate the total amount which the town has by vote authorized to be so borrowed. A town may not, under the provisions of R. L., c. 27, § 6, authorize an amount to be borrowed in anticipation of taxes which exceeds the amount of the tax assessed or to be assessed for the year within which the debt is contracted.
of Statistics. 1910 August 16.
By your letter of July 29 you desire to be advised as to To the whether or not a town has authority "to legally issue notes in anticipation of taxes for any one year to an amount in the aggregate in excess of the total amount which the town by vote has authorized may be borrowed. For example: if a town is authorized to borrow $50,000 in anticipation of taxes, may it
borrow in excess of that sum, provided at any one time it has not more than $50,000 outstanding?"
I assume that you refer to money borrowed in anticipation of taxes under the provisions of R. L., c. 27, § 6, which is as follows:
Cities and towns may by a majority vote incur debts for temporary loans in anticipation of the taxes of the municipal year in which such debts are incurred and expressly made payable therefrom by such vote. Such loans shall be payable within one year after the date of their incurrence, and shall not be reckoned in determining the authorized limit of indebtedness.
Under this provision of law I am of opinion that the amount of the debt which the town has by vote duly authorized to be incurred may not in any case be exceeded, and that the authority of the town officers in the premises is exhausted when they have once contracted a debt to the extent of the sum set forth in such vote. It follows, therefore, that notes may not be legally issued for debts incurred in anticipation of taxes in any one year when such debts in the aggregate exceed the total amount which the town has by vote authorized to be so borrowed. See 1 Op. Atty.-Gen. 24, 65, 418; Agawam National Bank v. Inhabitants of South Hadley, 128 Mass. 503; Smith v. Dedham, 144 Mass. 177.
You also desire to be advised "as to what is the limit, if any, upon the amount which can be borrowed by a municipality in anticipation of taxes."
Section 6, above quoted, imposes no express limitation upon the authority of a town to incur debts for temporary loans, but, by its implication, such authority must be limited to the amount of the tax assessed or to be assessed in the year during which such debt is incurred. Thus, if the debt is incurred before the tax has been actually assessed, its amount must not exceed the amount of taxes to be levied for the year within which such debt is contracted. If the debt is incurred after the taxes have been assessed and before they are collected, it must not in any event exceed the amount of tax money assessed for that year remaining uncollected.
The provision of St. 1906, c. 463, part III., § 103, that for the purposes therein specified a street railway company "may . . . increase its capital stock or issue bonds, . . . to such an amount, ... as the board of railroad commissioners shall determine will realize the amount which has been properly expended or will be properly required. . . for such of the purposes aforesaid as are set out in its petition to said board," authorizes the Board of Railroad Commissioners to approve an issue of bonds and the sale thereof by a street railway company at less than par value, provided that the price realized by such sale furnishes a fair and reasonable equivalent for the securities so disposed of.
The Board of Railroad Commissioners, having acted upon the petition of a street railway company and determined the amount of bonds which, if sold at par, would realize the amount properly expended or properly required, as set forth in the petition, upon a subsequent petition may take into consideration the fact that the petitioner has been unable to dispose of the bonds so authorized at par, and may approve a further issue of bonds for the same purpose in order to meet the deficit so created.
St. 1910, c. 536, amending St. 1906, c. 463, part III., § 103, and providing that the Board of Railroad Commissioners, in authorizing an issue of bonds under section 103, "may prescribe the minimum price at which such bonds shall be sold, and may modify such price from time to time," and where the minimum price so established is less than par, may provide for the establishment of a sinking fund which at the maturity of the bonds will amount to the difference between the selling price and the par value thereof, is applicable to a petition pending at the time of its passage.
By a communication dated September 23 you have requested To the Board my opinion upon certain questions arising under the provisions Commissioners. of St. 1906, c. 463, part III., § 103, as amended by St. 1910, October 21. c. 536. Your communication states that under the statute first mentioned, and prior to the enactment of the amendment, the Board approved:
an issue by a street railway company of bonds of a par or face value equal to the amount of certain floating indebtedness properly incurred by the company in the construction and equipment of its railway and in the purchase of property necessary for its operation. The company sold the bonds, and realized therefrom an amount less than their par value and less than the amount of floating indebtedness which it was proposed to pay. After applying the proceeds of the sale of said bonds to said floating indebtedness, the company filed its petition with the Board for approval of the issue of additional bonds to an amount sufficient