Stiles v. Municipal Council of Lowell, 229 Mass. 208

Stiles v. Municipal Council of Lowell

229 Mass. 208 | Mass. | 1918

Braley, J.

It was held in Thomas v. Municipal Council of Lowell, 227 Mass. 116, that the words, “under the laws regulating the civil service” as used in St. 1911, c. 645, § 40, which is the city charter, mean that the removal or suspension “for such cause as it shall deem sufficient” of “any executive or administrative officer or head of a sub-department ” the municipal council had the power to appoint, must be effected in the manner provided in St. 1904, c. 314, as amended by St. 1905, c. 243. The validity of the removal by the respondents of the petitioner Stiles from his office of city treasurer and collector of taxes, and of the petitioner Foye as purchasing agent for the city, which offices the council under St. 1911, c. 645, §§ 37, 39, had the power to fill, is therefore to be determined under the laws governing the civil service.

The material portion of the vote of the council removing the treasurer reads as follows, “After due consideration of the testimony adduced at the hearing, and the exhibits, it appears that *210Andrew G. Stiles failed to exercise proper diligence in discharging the functions of his office. Therefore, we find that such failure and neglect of duty is contrary to the good of the service.” But as the record shows that no notice of the proposed action ever was given, or copy furnished the petitioner stating specifically the reasons of removal, or a reasonable opportunity afforded him to prepare and present his defence as required by St. 1904, c. 314, St. 1905, c. 243, the order cannot be sustained. It is a nullity. Hill v. Mayor of Boston, 193 Mass. 569, 573. Lattime v. Hunt, 196 Mass. 261, 266. McCarthy v. Emerson, 202 Mass. 352. Tucker v. Boston, 223 Mass. 478. Thomas v. Municipal Council of Lowell, 227 Mass. 116.

What has been said applies equally to the removal of the petitioner Foye, as no specifications of the reasons upon which the respondents proposed to take action appear in the order notifying him of the hearing. The statement in the order, that the council proposed to remove him from the office of purchasing agent for the good of the service, is not a compliance with St. 1904, c. 314, §§ 1, 2, as amended. Nor did the letter of the city solicitor to the petitioner’s counsel advising him of the nature of the evidence to be introduced at the hearing cure this radical defect. It is the municipal council, and not the city solicitor which is to furnish proper specifications, and this duty cannot be evaded or lawfully delegated. The final order also having stated that the petitioner is removed “for the good of the service” was ineffectual for reasons previously stated. The cases of Ayers v. Hatch, 175 Mass. 489, Hogan v. Collins, 183, Mass. 43, and O’Brien v. Cadogan, 220 Mass. 578, on which the respondents rely as stating a different rule, are very plainly distinguishable. In the first two cases the officials removed were not classified under the civil service and the special acts under which action was taken did not require the reasons to be “specifically given in writing” as in the cases at bar, while in the last case no question was raised that the order demoting the petitioner from the rank of sergeant to the rank of patrolman because “there are too many sergeants now acting for the force employed and your services are not necessary” was insufficient, as it certainly was not.

The order of the single justice that the respondents should elect whether they would proceed on the plea in abatement or on the *211demurrer or the answer, was a matter of discretion, the exercise of which shows no error of law. R. L. c. 192, § 5. Finlay v. Boston, 196 Mass. 267. Hill v. Mayor of Boston, 193 Mass. 569, 575. Sears v. Nahant, 208 Mass. 208.

A peremptory writ of mandamus as prayed for is to issue in each case, commanding the respondents to recognize each petitioner as holding the office to which he is entitled, and ordering that the person who claims to hold such office under an unauthorized election by the respondents shall cease and refrain from interfering in any way with the petitioner in the performance of the duties of his office or attempting to perform or usurp the duties appertaining to such office. Hill v. Mayor of Boston, 193 Mass. 569, 575.

So ordered.