The petitioner was a lieutenant in the fire department of the city of Boston. On January 9,1953, after a hearing before the then fire commissioner (the respondent Kelleher), on charges of misconduct while on duty, he was dismissed from the service.
1
Alleging that the dismissal
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was improper because of bad faith on the part of Kelleher in conducting the hearing, the petitioner brings this petition for a writ of mandamus against the fire commissioner and the members of the civil service commission, hereinafter called the commission, to require either the commissioner or the commission, or both, to reinstate him, and to assess damages for loss of salary incurred by reason of the dismissal. The judge ordered the petition dismissed and the petitioner appealed from this order. G. L. (Ter. Ed.) c. 231, § 96.
Adamsky
v.
City Council of New Bedford,
With respect to the hearing before the fire commissioner it is agreed that all of the procedural requirements prescribed by G. L. (Ter. Ed.) c. 31, § 43 (a), including proper notice of dismissal, were satisfied. It is also agreed that the petitioner received notice of his dismissal on January 9, 1953, a Friday, and that he made a request in writing for a hearing under G. L. (Ter. Ed.) c. 31, § 43 (b), which was received by the commission on January 15, 1953. It will be noted that this request was made on the sixth day, counting Sunday, and the fifth day, excluding Sunday, after the petitioner had received notice of his dismissal from the fire commissioner, who, it is conceded, was the appointing authority referred to in § 43 (a) and (b). The commission refused to grant a hearing under § 43 (b) on the ground that the petitioner’s request was not seasonable.
There was no error.
Section 43 (b), as amended, provides, so far as here material, that “If within five days after receiving written notice of the decision of the appointing authority the person . . . discharged, [or] removed . . . shall so request in writing, he shall be given a hearing before a member of the commission or some disinterested person designated by the chairman of the commission.” The petitioner argues that his request was timely because in computing the running of the five day period from January 9, the commission should have excluded Sunday. If Sunday is not to be counted, the request obviously was seasonable.
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We recognize the general rule to be that when the time limited by a statute for the performance of any act is less than seven days, Sunday shall not be included in the computation.
Stevenson
v.
Donnelly,
Thus with respect to most of the periods of time which are less than a week Sundays and holidays are expressly excluded. But in the clause relating to the requesting of a hearing before the commission the words “exclusive of Sundays and holidays” are omitted. The omission of these words in that clause, we think, is significant. It is strongly indicative that in certain situations Sundays and holidays are to be excluded in computing the time and that in a situation like the present they are to be included. Expressio unius est exclusio alterius.
Commonwealth
v.
Berkshire Life Ins. Co.
It follows that Sunday was rightly included in computing the five day period and that the petitioner’s request for a hearing was not seasonable and was properly refused. The petitioner shows no ground for relief against the commission.
His case against the fire commissioner likewise fails. He cannot resort to mandamus if there was some other adequate remedy available to him.
McLaughlin
v.
Mayor of Cambridge,
Order dismissing petition affirmed.
Notes
By amendment Francis X. Cotter, the present fire commissioner, was substituted as a party respondent for the respondent Kelleher.