177 Mass. 29 | Mass. | 1900
This is a petition for a writ of mandamus to compel the city of Worcester to restore the petitioner to the position of a police officer of that city, which position he had held by appointment under St. 1888, c. 360, entitled “ An Act' to fix the tenure of office of the members of the police force of the city of Worcester.” Under this statute he was subject to removal by the mayor and aldermen for cause, upon hearing. On March 24, 1896, he was served with an order of removal for neglect of duty, signed by the mayor. The St. of 1893, c. 444, is “ An Act to revise the charter of the city of Worcester,” which was duly accepted by the city, and which went into effect on the first Monday of January, 1894. Section 26-of this act provides for the appointment of all officers of the city by the mayor, subject to confirmation by the board of aldermen, except where other specific-provision is made, and also provides
The question arises whether the petitioner was subject to removal by the mayor alone under the provisions of this act, or only by the mayor and aldermen under the provisions of St. 1888, c. 360. If after the establishment of the police department under the new charter the mayor had appointed the petitioner to the police department in accordance with the provisions of the ordinance, it would have been clear that he would have been subject to removal by the mayor for cause, without action by the board of aldermen. There is strong ground for the contention of the respondent that the above provision for the continuance in office of all persons holding office under former acts is inapplicable to police officers after the establishment of a police department by ordinance under St. 1893, c. 444, § 41, inasmuch as the establishment of such a department, the officers of which were subject to appointment and removal by the mayor alone, would come within the words “ except as herein otherwise provided.” It well may be argued that the provision for the continuance of persons in office was intended merely to relieve from the effect of a repeal of former statutes, but not to continue in effect a statute in regard to the tenure of office of policemen, inconsistent with the statute applicable to the police department after it is organized under a special provision of the later statute.
But we do not find it necessary to decide this question. If St. 1893, c. 444, was applicable to him, the petitioner was legally removed; if, on the other hand, he could only be removed by action of the aldermen as well as the mayor under the earlier statute, the requirements of this statute were substantially,
Petition dismissed.