| Mass. | Apr 13, 1923
The petitioner Gordon seeks a writ of mandamus to restore him to the office of police captain of the city of Cambridge, from which he was removed on November 5, 1921, by the respondent, as chief of police of said city. The material facts are as follows: On November 2, 1921, Gordon received a letter from said chief of police suspending him from the police department, and notifying him that on November 5, 1921, at 10 A.M. he would be given a hearing upon charges preferred against him. He requested a public hearing, but his counsel notified the respondent that no hearing could legally be held as early as November 5; and on that day no hearing was held, although three captains of police, designated by the respondent as a trial board, were in another room in the building. At 12:15 p.m. on said November 5 the respondent revoked the order suspending Gordon, and restored him to duty. On the same day, at 12:45 p.m. the respondent removed Gordon from the police department, and caused to be delivered to him, within twenty-four horns, a written notice to that effect, with certain specific reasons for his action. The petitioner, in accordance with his request under G. L. c. 31, was given a public hearing on November 17, and subsequent days: he was present with counsel and witnesses, and cross-examined witnesses against him; on November 28 the respondent made his decision confirming the petitioner’s removal; and notice of said decision was given within the time required by law. He then duly filed a petition in the Third District Court of Eastern Middlesex for a review of the action of the respondent, in accordance with G. L. c. 31, § 45. After a full hearing said cotut found the removal to be for just cause and in good faith and ordered the petition dismissed.
Since St. 1884, c. 320, § 15, the police officers of cities have been subject to civil service rules. The law in force at the time of the petitioner’s removal, and now, provides, in substance, that no such officer shall be removed from office except for just
That the chief of police was the proper removing officer is not questioned by the parties. See St. 1891, c. 364; St. 1912, c. 611, §§ 5, 7; St. 1915, c. 267, Part I, § 5 (now G. L. c. 43, § 5). Ellis v. Civil Service Commissioners, 229 Mass. 147" court="Mass." date_filed="1918-01-04" href="https://app.midpage.ai/document/ellis-v-members-of-civil-service-commission-6434258?utm_source=webapp" opinion_id="6434258">229 Mass. 147, 151. The main contention of the petitioner is that the respondent McBride, as chief of police, was without power or authority to remove him from the office of captain or from the police department for any cause until and unless he had been found guilty by a trial board. This claim is based upon Rule 55 of Police Regulations, which reads as follows: “Any officer may be punished by the chief, in his discretion, either by reprimand, suspension, or fine not exceeding in amount five days’ pay for any one offence which may be enforced'by withholding pay, and in accordance with the provisions of the laws governing the civil service by the commissioner, by being reduced in rank, or by dismissal from the Force, either on conviction by any court of any offence, or if found guilty by a trial Board appointed by the Chief of any one of the following offences, to wit:” — enumerating fifteen offences.
All that the record discloses as to said Rule 55 is the statement in the agreed facts that it “was adopted by the respondent, as Chief of Police, and approved by the Mayor.” It does not appear what legal authority there was to establish such a rule. If it was based upon the limited power to make rules governing the discipline of the police department, which was conferred on the chief of police of Cambridge under St. 1912, c. 611, § 5, as
As the act of the respondent in removing the petitioner was valid, because in compliance with said G. L. c. 31, governing the subject, it is unnecessary to consider the effect of the decision of the Third District Court. See Gardner v. Lowell, 221 Mass. 150" court="Mass." date_filed="1915-05-20" href="https://app.midpage.ai/document/gardner-v-city-of-lowell-6433169?utm_source=webapp" opinion_id="6433169">221 Mass. 150; Murray v. Justices of the Municipal Court of the City of Boston, 233 Mass. 186" court="Mass." date_filed="1919-06-19" href="https://app.midpage.ai/document/murray-v-justices-of-the-municipal-court-6434806?utm_source=webapp" opinion_id="6434806">233 Mass. 186.
Petition dismissed.