251 Mass. 71 | Mass. | 1925
Upon the admitted facts in the case, the petitioner is a veteran and so certified on the, civil service rolls, and entitled to veteran’s preference within the meaning of G. L. c. 31. On or about September 21, 1921, the civil service department of the Commonwealth assigned him for permanent service as a subway blacksmith, Boston transit department. Under date of April 2, 1924, he was notified in writing by Thomas F. Sullivan, chairman of that department, that his services would be terminated at the close of business April 5, by reason of lack of work. On May 13, 1924, this petition for a writ of mandamus was filed, alleging that the petitioner was illegally discharged by the head of a city department because he was not given the notice and hearing to which a veteran is entitled under G. L. c. 31, § 26. The defendants in their answer denied that the petitioner was employed by a city department, and contended that the transit department of the city of Boston was created by an act of the Legislature for the purpose of constructing subways in Boston and that it is not governed, in the removal of employees, by G. L. c. 31, § 26. The single justice of this court who heard the case, found that the petitioner was employed as a blacksmith by the transit department of the city of Boston, Spec. St. 1918, c. 185; that he was discharged for lack of work, as stated by the department in the order for his discharge; and that G. L. c. 31, § 26, was not complied with. He ordered the writ to issue and reported the case for determination by the full court.
The Boston Transit Commission was created by St. 1894, c. 548, § 23, approved July 2, 1894. By § 24 of the act, the commission was given authority to choose such engineers, clerks, agents, officers, assistants and other employees as it may deem necessary, to determine the duties and compensation of such employees, and to remove the same at pleasure. The term of office of members of the commission was extended from time to time until July 1, 1918 (Spec. St. 1917, c. 368). In Mahoney v. Boston, 171 Mass. 427, 429,
The question to be decided is, whether the right to remove employees at pleasure, given the transit commission in the act creating it, is now in force so that employees in the transit department of the City of Boston may be discharged at pleasure. The employees working in this department are in the service of the city of Boston and are its employees.
Veterans employed in the public service of a city are entitled to the notice and hearing provided for in G. L. c. 31, § 26, before being removed from such employment. The city of Boston in employing and discharging laborers is subject to the statutes and rules relating to the civil service.
If it be assumed that the right to remove at pleasure an employee in the labor service of the transit commission continued until the transfer of its powers to the city of Boston, a question which we do not decide, that right did not continue in the city of Boston as to employees appointed under the civil service and entitled to veterans’ preference. It is to be noted that the Legislature had already, by St. 1914, c. 636, provided that laborers employed by the Boston Transit Commission should be deemed to be in the service of the city of Boston within the provisions of the workmen’s compensation act for public employees and to be entitled to the compensation provided by that act, and it may have been one of the purposes of the Legislature in transferring the powers and duties of the transit commission to the city of Boston to give the employees in the transit department the rights of employees under the civil service as well as all other rights which are incident to such employment. This interpretation of the act finds some support in St. 1918, c. 24, which authorized the transfer of laborers and all other employees who were in the employ of the Boston Transit Commission on January 1, 1918, to any city in the metropolitan district without examination and notwithstanding any restrictions in the civil service laws or regulations applicable to such transfer upon a request to that effect by the head of a department in any such .city.
In Logan v. Mayor & Aldermen of Lawrence, 201 Mass. 506, the question was raised whether St. 1906, c. 210, extending the civil service act to police officers of cities and giving them the right not to be removed except for just cause and for reasons specifically given in writing, applied to the city of Lawrence by whose charter (St. 1853, c. 70, as amended by St. 1887, e. 397) the power to appoint and remove police officers was given to the mayor and aldermen. The city of Lawrence had accepted the provisions of the civil service law, R. L. c. 19, in the manner provided in § 36 of that
The nature of the work that the transit commission was required to do does not modify or change the conclusion here
Upon the facts before us the removal was unlawful, and in accordance with the order of the single justice,
Writ of mandamus is to issue.