308 Mass. 578 | Mass. | 1941
This is a petition for a writ of mandamus to compel the mayor and chief of police of Newton to reinstate the petitioner as sergeant-mechanic in the police department
The petitioner contends that the board of aldermen was not acting in good faith in passing the ordinance which purported to abolish the petitioner’s office in the police department, and that the office could not be abolished without notice to the petitioner and a hearing being granted him.
The auditor found that the aldermen who voted in favor of the amendment abolishing the office of sergeant-mechanic acted in good faith and as they believed for the best interest of the city as a measure of economy. He also found that the measure was not enacted “as a mere device for getting rid of the petitioner.” After determining the motives which actuated each member of the board of aldermen who voted in favor of abolishing the petitioner’s office, the auditor found that the members were materially influenced by the facts that the bulk of the repair work of the automotive equipment of the police department was done by a civilian employee; that all the work could be done by one man, who need not be a police officer; that the purchasing of materials should be done under the supervision and responsibility of the chief of police; and that, consequently,, the services of the petitioner were unnecessary and could be dispensed with in the interests of economy.
The. petitioner contends that his office in the police department could hot be abolished by an ordinance until he had been given notice of the proposed action and had been accorded a hearing. G. L. (Ter. Ed.) c. 31, § 42A, provides that “Every police officer holding an office classified under the civil service rules . . . shall hold such office
The Legislature may create a public office, other than one created by the Constitution, provide for the election or appointment of its incumbent, establish and modify from time to time its tenure, compensation and duties, and abolish the office as the public interest may require. Taft v. Adams, 3 Gray, 126, 130. Williams v. New Bedford, 303 Mass. 213. Dodge v. Board of Education of Chicago, 302 U. S. 74. Higginbotham v. Baton Rouge, 306 U. S. 535, 538. Similar power may be conferred upon cities in reference to municipal offices. The city charter of Newton, St. 1897, c. 283, § 14, vests ample power in the board of aldermen to create and abolish offices in the police department. Chandler v. Lawrence, 128 Mass. 213. Donaghy v. Macy, 167 Mass. 178. Williams v. New Bedford, 303 Mass. 213. But the civil service laws, which in their present form appear in G. L. (Ter. Ed.) c. 31, were intended to be of general application to cities and towns, and have been held to be amendments to any provisions of city charters that were inconsistent with them. Logan v. Mayor & Aldermen of Lawrence, 201 Mass. 506. Cassidy v. Transit Department of Boston, 251 Mass. 71. It was within the province of the Legislature to determine the method by which one occupying an office in the classified service could be separated from the public service. A municipal officer or body in proceeding to accomplish such a result was bound to comply with the statute. Stiles v. Municipal Council of Lowell, 233 Mass. 174. McKenna v. White, 287 Mass. 495. Farrell v. Mayor of Revere, 306 Mass. 221. The instant statute, G. L. (Ter. Ed.) c. 31, § 42A, expressly provides that the office of a police officer shall not be abolished unless the officer shall have been given notice and a hearing upon such proposed action if he so requests. This is in further
This case does not fall within the general principle illustrated by Alger v. Justice of the District Court of Brockton, 283 Mass. 596, 601, Selectmen of Milton v. Justice of the District Court of East Norfolk, 286 Mass. 1, 5-7, and Fortin v. Chicopee, 301 Mass. 447, 448-449.
The statutory restriction limiting the exercise of the power to abolish an office or position to a particular method is but an application of the familiar principle that the general authority inherent in a municipal officer or board can be asserted only in the specific manner designated by the Legislature. United States Drainage & Irrigation Co. v. Medford, 225 Mass. 467. Bay State Street Railway v. Woburn, 232 Mass. 201. Simpson v. Marlborough, 236 Mass. 210. Conners v. Lowell, 246 Mass. 279. Leroy v. Worcester Street Railway, 287 Mass. 1. Goodyear Park Co. v. Holyoke, 291 Mass. 11. Eastern Massachusetts Street Railway v. Mayor of Fall River, ante, 232.
The absence of a hearing invalidated the ordinance purporting to abolish the petitioner’s position even though the board of aldermen acted in good faith. Thomas v. Municipal Council of Lowell, 227 Mass. 116, 118. Peckham v. Mayor of Fall River, 253 Mass. 590, 592.
The statute, G. L. (Ter. Ed.) c. 31, § 42A, expressly gives a police officer the right to notice and a hearing before his office is abolished (Dunn v. Commissioner of Civil Service, 279 Mass. 504, 509), and requires that such notice furnish him with the reasons for the contemplated abolition and requires, after the hearing, a written order signed by the board or officer holding the hearing stating fully and specifically the causes therefor. This statute applies to the “removal, suspension, transfer, lowering in rank or
The requirement of a written order abolishing the office by the board or officer holding the hearing necessarily implies that the hearing is to be held before a board or officer empowered to abolish the office which, in this instance, is the board of aldermen. The statute ought to be construed, if reasonably possible, so as to effectuate its beneficent aim of affording genuine protection to a police officer by preventing the abolition of his office without notice and a hearing. The words describing the board or officer who shall conduct the hearing may be given their appropriate meaning by construing them as applying to such a board or officer when acting upon a matter which is fairly included within the power of appointment or removal of a police officer but such words cannot be extended to grant to such a board or officer power to hear and determine a matter which is by law conferred upon another body. A literal construction of these words ought not to be adopted where such a construction would not be consistent with the other material provisions of the statute and would de
Exceptions sustained.