320 Mass. 663 | Mass. | 1947
By this petition for a writ of mandamus the petitioner seeks to compel the respondent to reinstate him as a police officer and to continue his employment, and to require that all “compensation due him from the date of his suspension be restored to him.” The respondent demurred to the petition, setting out as grounds (1) that “The petition is not brought in accordance with G. L. (Ter. Ed.) c. 31, § 46A, inasmuch as the petitioner has not been removed from his employment”; (2) that “The petitioner has not requested a hearing before a member of the civil service commission as provided by” St. 1945, c. 667; and (3) in substance that, the petitioner not having exhausted all other remedies available to him, the writ should not be granted. The first ground of demurrer having been waived, the judge entered a decree sustaining the demurrer on the second and third grounds. The petitioner’s appeal therefrom brings the case here.
Material- allegations of the petition may be summed up as follows: The petitioner was appointed a regular police officer of the city of Medford on January 1, 1933. He received a letter dated November 12, 1945, from the chief of police, notifying him that he was suspended from police duty for violation of the rules and regulations of the police department, and specifying that the petitioner had not patrolled or not properly patrolled his route during his tour of patrol duty, and that he had failed to make duty calls on
The remedy afforded to one aggrieved, in case of suspension, by request for a hearing before a member of the civil service commission, as provided in § 43 (b) of the statute just above referred to relative to the “discharge, removal, [or] suspension” of persons in the civil service, does not accrue until the requisite hearing has been given and decision made by the appointing authority as provided in § 43 (a),
It follows from the facts alleged in the petition that the petitioner never was given the hearing by the respondent to which he was entitled within seventy-two hours after notice of his suspension, as provided in § 43 (e), that the subsequent hearing, not having been held in conformity with the provisions of the governing statute, was of no force and effect, and that therefore the right to request a hearing before a member of the civil service commission or some disinterested person designated by the chairman of the commission never came into being, nor the right after such
What we have just said disposes of the respondent’s third ground of demurrer that the petitioner has not “exhausted all other remedies available to him.” The present petition lies on the facts alleged in so far as it seeks to compel the reinstatement of the petitioner to his-employment. In so far, however, as it is brought to recover compensation for the period during which the petitioner may be found to have been illegally suspended, the petitioner must be remitted to an action of contract to recover his accrued wages. See Lattime v. Hunt, 196 Mass. 261; Police Commissioner of Boston v. Boston, 279 Mass. 577; Seney v. Board of Health of Northampton, 314 Mass. 272, 275-276.
Order sustaining demurrer reversed.
Demurrer overruled.