Lattime v. Hunt , 196 Mass. 261 ( 1907 )

Braley, J.

By St. 1851, c. 296, the city of Newburyport was established, and by § 8 the mayor and board of aldermen were vested in the administration of the police with all the powers possessed by the selectmen of the town before it became a city. They further were given “ full and exclusive power to appoint a constable and assistants, or a city marshal and assisttants with the powers and duties of constables and all other police officers, and the same to remove at pleasure.” This provision, so far as it relates to the exercise of the power of appointment, has not been curtailed by the amendments to the charter found in Sts. 1895, c. 266, 1899, c, 101, and the establishment of the civil service of the Commonwealth by St. 1884, c. 820, now R. L. c. 19, under which, since then, the police department has been classified. But, as defined in St. 1851, c. 296, § 9, whenever appointments to office are directed under the act to be made by the mayor and aldermen, the exclusive power of nomination was conferred upon the mayor, subject to confirmation or rejection by the board of aldermen.

The petitioner became a police officer in 1894, and has since served continuously by annual reappointment, either in the ranks or as city marshal. In 1907, while holding the latter office, he resigned, although stating that he did not intend thereby to retire from the service.

It may be doubtful whether, under the language of the charter, or under that of the ordinance, upon his acceptance of the office of marshal, he still remained an “ assistant.” The two offices ordinarily are deemed distinct, with incompatible duties, as on becoming the chief officer, with the power of command and authority to enforce obedience, it may be said that he ceased to be a subordinate. We do not, however, deem it necessary on this branch of the case to decide whether they can be treated as having been coexistently held or exercised. See Commonwealth v. Hawkes, 123 Mass. 525, 529, 530; United States v. Wright, 1 McLean, 509; Milward v. Thatcher, 2 T. R. 81; The King v. Patteson, 4 B. & Ad. 9; The King v. Tizzard, 9 B. & C. 418; Magie v. Stoddard, 25 Conn. 565; State v. Hoyt, 2 Ore. 246; Bryan v. Cattell, 15 Iowa, 538; People v. Green, 58 N. Y. 295.

If the act of resignation is treated as a retirement from the department itself, as claimed by the present mayor, who alone contests the petition, it was within the lawful authority of his predecessor to reappoint, and of the board of aldermen to confirm the petitioner as a police officer. When communicating to the board his official acceptance of the petitioner’s resignation of the marshalship, in which they concurred, the mayor then in office stated that the petitioner had been assigned by him to duty under the designation of a “ night patrolman.” It is the accomplishment of the executive purpose, rather than the precise phraseology used, which defines the legal effect of the action taken, and, in whatever form expressed, this assignment was intended by the chief executive of the city to be an appointment to police duty. The nomination having been confirmed, the petitioner under the charter and the city ordinance would have been constituted a police officer with all the powers of a constable, except those pertaining to the service and execution of civil process. Commonwealth v. Cushing, 99 Mass. 592. Sts. 1851, c. 162; 1851, c. 296. R. L. c. 25, § 44. Commonwealth v. Sullivan, 165 Mass. 183. But the important question upon the decision of which the petitioner’s right to relief depends is, whether this selection and appointment also were in conformity with the laws governing the civil service, whose violation was alleged by the respondent in his order to the city clerk as the ground for dismissal. The agreed facts distinctly state that originally, after a strict compliance with the rules of the civil service, he received his first appointment as a police officer, and until his resignation he never retired from this office unless during the years when he accepted the superior office of marshal. But, under the system of dual appointments which had been adopted, the acceptance and discharge of the duties of the unclassified office of marshal, which included the incidental qualifications required for the subordinate position, placed the petitioner, who while thus employed received no wages as a patrolman, substantially within the provisions of the thirty-first rule of the civil service authorizing the commissioners to treat him as provisionally a police officer during the time he held the-marshalship. Attorney General v. Trehy, 178 Mass. 186. St. 1884, c. 320, § 15. R. L. c. 19, § 9. The course pursued having received the sanction of the civil service commission, who may be presumed to have acted under the authority conferred by this rule, he must be considered as having preserved his rating and eligibility from year to year without further examination. The last appointment, even if made nearly at the close of the municipal year, does not' differ from those previously made, and, under civil service rule thirty-three, being simultaneous with the acceptance of the resignation, the nomination should be treated as essentially a reappointmeht to the same office.

The term of service, while not specified by the ordinance, was originally fixed by the charter to continue during the pleasure of the mayor and aldermen. If this provision is construed as meaning an annual appointment, even then both must concur in the exercise of the power of removal during the year before the petitioner could be lawfully deposed. Murphy v. Webster, 131 Mass. 482, 488. See also St. 1851, c. 296, §§ 8, 9. In Lahar v. Eldridge, 190 Mass. 504, it was held that an ordinance was valid which prescribed the period of service of a classified police officer, who was annually appointed, at the expiration of which he ceased to hold office, and that a provision in the amended charter requiring removals to be for cause meant only a removal during the year, and did not have the effect of prolonging his tenure. See also Smith v. Haverhill, 187 Mass. 323. But following this decision St. 1906, c. 210, was enacted, which was in force when the petitioner received his last appointment. This act provides that “ every police officer now holding or hereafter appointed to an office classified under the civil service rules of the Commonwealth, in any city, and whether appointed for a definite or stated term, or otherwise, shall hold office continuously during good behavior, and shall not be removed therefrom ... or suspended . . . except for just cause, and for reasons specifically given in writing by the removing officer or board.” By § 2, the second section of the St. of 1904, c. 314, is made applicable, which requires notice to the person whose removal is sought, with a copy of the reasons assigned, and, if requested in writing, he is to be given a public hearing upon the charges preferred.

The course pursued in directing the dismissal of the petitioner without the concurrence of the board of aldermen and without proceeding as required by these statutes was therefore wrongful and unjustifiable. Having been unlawfully deprived of his office, with its emoluments, the petitioner should be restored, and for this purpose a peremptory writ of mandamus is to issue. But he must be remitted to an action of contract to recover any arrears of salary to which he may be found justly entitled. Ransom v. Mayor of Boston, 193 Mass. 537. Hill v. Fitzgerald, 193 Mass. 569. Ransom v. Boston, 192 Mass. 299.

Ordered accordingly.