Sims v. Police Commissioner, 193 Mass. 547

Sims v. Police Commissioner

193 Mass. 547 | Mass. | 1907

Sheldon, J.

The petitioner was in no sense a police officer. The ordinary duties of a janitor at a police station are in no respect similar to those of a police officer. He was not a member of the police department. His appointment does not come within the provisions of St. 1878, c. 244, § 3 ; and the limitation imposed upon the power of removal of the officers or members of the police department was not created for his benefit, and is not available for his protection. The doctrine of Ham v. Boston Board of Police, 142 Mass. 90, cannot be applied in this case. The St. of 1885, c. 328, contains nothing to prevent the board of police of Boston from discharging one of their employees whenever in their judgment it might be advisable to do so; nor has our attention been called to any subsequent legislation having this effect, unless it be found in the statutes regulating the civil service and fixing the right of veterans presently to be considered. O'Dowd v. Boston, 149. Mass. 443. Attorney General v. Donahue, 169 Mass. 18.

The petitioner was not protected by the provisions of St. 1885, c. 266, § 5, that officers and boards of the city of Boston may remove their subordinates “ for such cause as they may deem sufficient and shall assign in their order for removal,” because the police commissioners were not officers or a board of the city of Boston, but were appointed by and were responsible to the Governor of the Commonwealth. Commonwealth v. Plaisted, 148 Mass. 375, 383, et seq. Phillips v. Boston, 150 Mass. 491, 494.

But it is contended that the petitioner was a “ veteran holding an office or employment in the public service ” within the meaning of St. 1896, c. 517, § 5, now embodied in R. L. c. 19, § 23, and accordingly could not be removed without the hearing pro*550vided for in that section. But the difficulty with this position is that, as appears by the agreed facts, the board of civil service commissioners did not, until after the petitioner’s discharge, include the petitioner’s employment in its list of positions to be filled by its certification, nor had the petitioner before his discharge been registered in the office of the board as a veteran or been certified by it for appointment; and this petition must be determined upon the facts which existed at the time of his discharge. Ayers v. Hatch, 175 Mass. 489, 490. It was said in that case by Morton, J., referring to the St. of 1896, c. 517: “ It is plain, it seems to us, that the statute was intended to provide for the preference of veterans in the offices and employments coming within the scope of St. 1884, c. 320, commonly known as the civil service act, and the acts in amendment thereof, and that the provisions of § 5 apply to veterans who hold offices and employments under and pursuant to the statutes relating to civil service and the rules established by the civil service commissioners. Section 1 defines the word ‘ veteran ’ as used in the act. Sections 2, 3 and 6 relate to the examination and appointment of veterans to positions ‘in the public service classified under chapter three hundred and twenty of the acts of the year eighteen hundred and eighty-four and acts in amendment thereof and the civil service rules thereunder, subject to such rules,’ and to their employment ‘ in the labor service of the Commonwealth and of the cities and towns thereof ’ under rules established by the civil service commissioners. Section 4 contains directions to the commissioners respecting the preparation of lists of applicants for positions in the public service who have passed the examinations, and of those who have been certified for appointment or employment. Then comes § 5, and it seems to us that it would be wresting it from its connection and giving to it an effect that it was not intended to have to hold that it was intended to apply to any veteran who was in the public service of a town or city in - an office or employment of a civil nature. The more reasonable construction is, we think, that it was intended to prevent the removal or suspension or transfer without his assent and without a full hearing of a veteran who had been appointed under the statutes and rules relating to the civil service; thus continuing to him after his appointment the same preference over others *551who were not veterans, as before his appointment.” And see Johnson v. Kimball, 170 Mass. 58.

If any part of the petitioner’s salary or wages has been unjustly detained from him, he has a full remedy for the recovery thereof; but he shows no right to a mandamus to reinstate him in the position from which he has been discharged. We do not doubt, however, that, if the petitioner had the rights which he claims, mandamus would be a proper remedy for their enforcement; nor could we say that he was barred by laches. Ransom v. Mayor of Boston, ante, 537.

Petition dismissed.