Hill v. Mayor of Boston, 193 Mass. 569

193 Mass. 569 | Mass. | 1907

Braley, J.

Unless the 'office held by the petitioner was lawfully abolished, or he has been guilty of unreasonable delay, he is entitled to relief by mandamus. Keough v. Aldermen of Holyoke, 156 Mass. 403. Ransom v. Mayor of Boston, ante, 537. It was the purpose of R. L. c. 19, § 23, to protect a veteran holding office in the public service from capricious or arbitrary removal in whatever form the attempt might be made. If he becomes incapacitated, or his office or employment ceases to be necessary in the proper administration of the department with which he is connected, he can neither be removed nor his office abolished without first giving to him a statement of the reasons for the proposed change, and an opportunity for a full hearing. In cities this power is vested in the mayor before whom the hearing takes place, and the statement of reasons as well as the written notice must issue from the tribunal which alone is authorized to pass upon the inquiry. But a technical compliance with these requirements can be waived, and while the act of the superintendent in giving the notice and stating the reasons although presumably done with the knowledge and assent of the mayor did not comply with the statute, yet the petitioner was not misled, and having voluntarily attended with counsel, and been accorded a fair hearing, he cannot rely on this omission to defeat the proceedings if otherwise valid. Streeter v. Worcester, 177 Mass. 29, 31. The statute, however, is not satisfied, nor can there be a valid removal or abolition of the office unless after the hearing, if the decision is adverse, a 'written order reciting the cause or causes on which such action is founded has been signed by the mayor, whose action is final and not subject to review if as matter of law the reasons given are sufficient. Ayers v. Hatch, 175 Mass. 489, 492. Hogan v. Collins, 183 Mass. 43, 46. To him alone is given the power of decision, and this duty cannot be delegated. Commonwealth v. Smith, 141 Mass. 135, 140. At the completion of the hearing, if any decision was thereafter rendered, it was not communicated by the mayor to the petitioner, nor if a broad construction is given to his letter to the superintendent can this oommunication be construed as a written order abolishing the office with a specific statement of the reasons. Because of this failure to comply with the plain provisions of law the notice given by the superintendent that the petitioner’s office had ceased to exist was a nullity.

But the granting of the writ being discretionary the remedy is barred if the petitioner unreasonably neglected to enforce his right. Waldron v. Lee, 5 Pick. 323. Hill v. County Commissioners, 4 Gray, 414. Murray v. Stevens, 110 Mass. 95. J. H. Wentworth Co. v. French, 176 Mass. 442. Streeter v. Worcester, ubi supra. Mo precise definition can be formulated as to what is sufficient to constitute such want of diligence, but at law, upon a petition for mandamus, as well as upon a bill for equitable relief, this question must depend upon the circumstances of each particular case. Snow v. Boston Blank Book Manuf. Co. 153 Mass. 456, 458. J. H. Wentworth Co. v. French, ubi supra. Hayward v. Eliot National Bank, 96 U. S. 611. The mere lapse of time since the right of action accrued is important, but not absolutely decisive, although if the equitable claim is analogous to a legal right which is controlled by a statute of limitations equity will apply the same limit within which an action must be begun. Broadway National Bank v. Baker, 176 Mass. 294. Sunter v. Sunter, 190 Mass. 449, 456. In commencing and prosecuting an action at law which was inadequate to restore him to office the petitioner did not lose his present remedy because both were not concurrently instituted, for it is found by the report that there was no intentional waiver, nor abandonment of the claim that he had been unlawfully deposed. Blake v. Traders' National Bank, 145 Mass. 13, 17. People v. State Treasurer, 24 Mich. 468. He promptly engaged counsel and acted under their advice, and while his poverty alone might not relieve him from negligence, he was informed that a suit might be brought whenever he obtained the pecuniary means. Hayward v. Eliot National Bank, ubi supra. After the action at law was begun in which he was advised that the legality of the mayor’s action could be determined, the petitioner has been diligent, and the delay of two years before bringing that action cannot under the circumstances be said to constitute such acquiescence by him in his dismissal as to require us to deny appropriate relief. Pope v. Leonard, 115 Mass. 286, 291. Morse v. Hill, 136 Mass. 60, 66. Wood v. Westborough, 140 Mass. 403. Ransom v. Mayor of Boston, ubi supra.

The petitioner also asks that damages may be assessed. In proceedings in mandamus at common law the return could not be traversed, and, if sufficient in law, judgment followed for the defendant, and the only remedy of the relator was an action on the case for making in fact a false return. Howard v. Gage, 6 Mass. 462. Lunt v. Davison, 104 Mass. 498. Tucker v. Justices of Iredell County, 13 Ired. 434, 46 N. C. 451, 459. This action however was abolished by the St. of 1852, c. 312, § 38; subsequently Gen. Sts. c. 145, § 13; Pub. Sts. c. 186, § 14; and upon the return to the alternative writ, if the material facts were denied by an answer and the issue maintained, damages were to be assessed, and judgment therefor entered in favor of the person “ suing the writ.” But this is only a substitution, and means that if the petitioner prevails he recovers such damages only as were recoverable in an action for a false return. The R. L. c. 192, § 5, made changes bringing the statute into harmony with the practice which under the St. of 1851, c. 233, § 50, had gradually been adopted by this court, and instead of the alternative writ and return an answer to the petition is substituted, and the proceedings simplified. The provisions as to the pleadings are in uniformity with other remedial processes at law, as the case is heard and decided upon the petition and answer, with such further pleadings, if any, as may be necessary. Report of Commissioners on Pub. Sts. c. 192 n. McCarthy v. Street Commissioners, 188 Mass. 338, 340.

In the present case the petition and answer fully cover the merits of the controversy, and while the respondents have been found unable to justify, the statute does not confer the right to recover arrears of salary, even if the petitioner had been their servant, or damages for his unlawful ouster, as this process does not lie to enforce a personal liability either in contract or tort for which other adequate remedies are provided. Morse, petitioner, 18 Pick. 443, 446, 447. La Grange v. State Treasurer, 24 Mich. 468, 476. Yet he can recover damages which are shown to be the proximate result of their wrongful answer, and the loss of salary during the period which has elapsed since the bringing of the petition, while not decisive, ordinarily could be considered in fixing a just measure of compensation. See Johnson v. Walker, 155 Mass. 253, 254; People v. Supervisors of Richmond, 28 N. Y. 112; People v. Musical Protective Union, 118 N. Y. 101; Marion Beneficial Society v. Commonwealth, 31 Penn. St. 82; Hibernia Fire Engine Co. v. Commonwealth, 93 Penn. St. 204; People v. Morton, 24 App. Div. (N. Y.) 563. But upon restoration to office, since he becomes entitled to the .accrued emoluments during the entire period if found to have been able and willing to perform its duties, he can recover only nominal damages in this proceeding. Ransom v. Mayor of Boston, ante, 537.

By the terms of the report these damages are to be assessed by a single justice, and judgment is to be entered for the amount with costs, and for a peremptory writ of mandamus restoring him to his office.

So ordered.