McAuliffe v. Mayor and Board of Aldermen

Holmes, J. This is a petition for mandamus to restore the petitioner to the office of policeman in New Bedford. He was removed by the mayor upon a written complaint, after a hear — 220 — ing, the mayor finding that he was guilty of violating Rule 31 of the police regulations of that city. The part of the rule which the petitioner seems certainly to have violated is as follows: “ No member of the department shall be allowed to solicit money or any aid, on any pretence, for any political purpose whatever.” There was also evidence that he had been a member of a political committee, which likewise was prohibited. Both parties agree that the city had accepted chapter 319 of the Acts of 1890, by virtue of § 1 of which the members of the police force held office “ during good behavior and until removed by the mayor, ... for cause deemed by him sufficient, after due hearing.” It is argued by the petitioner that the mayor’s finding did not warrant the removal, that the part of the rule violated was invalid as invading the petitioner’s right to express his political opinions, and that a breach of it was not a cause sufficient under the statute. One answer to this argument, assuming that the statute does not make the mayor the final judge of what cause is sufficient, and that we have a right to consider it, (Ham v. Boston Board of Police, 142 Mass. 90, 95, and Osgood v. Nelson, L. R. 5 H. L. 636, 649,) is that there is nothing in the Constitution or the statute to prevent the city from attaching obedience to this rule as a condition to the office of policeman, and making it part of the good conduct required. The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. There are few employments for hi-re in which the servant does not agree to suspend his constitutional right of free speech, as well as of idleness, by the implied terms of his contract. The servant cannot complain, as he takes the employment on the terms which are offered him. On the same principle, the city may impose any reasonable condition upon holding offices within its control. This condition seems to us reasonable, if that be a question open to revision here. The petitioner also argues that he has not had due hearing. The first ground for this argument is some testimony reported that the mayor said that he did not care about the evidence; he knew what McAuliffe had been doing; he knew all about it. A sufficient answer to this is that the fact is not found by the judge who tried the case, and, if necessary to support his findings, — 221 — we should have to assume that he did not believe the evidence. Next it is said that the charges against the petitioner were not stated specifically, and that when specifications were called for they were refused. The judge was well warranted in finding that the mayor did all that justice required. The complaint was tolerably full, although, no doubt, under some circumstances further specifications properly ought to be demanded. The petitioner attended on notice at the first day appointed for a hearing, and asked for no specifications, and offered no evidence. There was evidence that he said to the mayor at the hearing, “ I admit I am guilty; what’s the penalty ? ” and also said to the mayor, at another interview, that, if he was going to be removed, he would like to know it so that he could resign. At an adjourned hearing before the mayor, the petitioner attended with counsel, and his counsel asked for specifications. The mayor refused the request, whereupon the petitioner refused to proceed, and the mayor declared the hearing closed. Under the circumstances, we cannot say that h'e was wrong. The next suggestion, that no notice was given to the petitioner that a proceeding to remove him from his office was intended, does not require much answer. The petitioner had notice of the proceedings, and must be taken to have known their possible consequences. According to the evidence, he used language to the mayor expressly contemplating those consequences. Finally, it is said that the case should first have been investigated before the committee on police, as provided by Rule 24 of the police regulations. But since the passage of the Act of 1890, if not before, we have no doubt of the power of the mayor to hear all cases on the removal of a police officer in the first instance himself. Petition dismissed.