O'Brien v. Cadogan

De Courcy, J. The petitioner in each of these cases is a police officer of the city of Lawrence, and on January 5, 1914, had the rank and pay of sergeant, an office classified under the civil service rules of the Commonwealth. The respondent Cadogan (herein called the respondent) is an alderman of the city and director of public safety, having under his management the sub-department of police. The charter of the city of Lawrence (St. 1911, c. 621, Part II) provides in § 43 that: “The . . . director of public safety [and certain other directors of the city] . . . shall have the power to appoint, suspend or remove, subject to the provisions of section forty-four and the laws of the Commonwealth, any officer, officers, board or boards in their respective departments.” Section 44 contains the following: “All removals from appointive offices shall be accompanied by a statement of the reason or reasons therefor under the signature of the director removing the officer or officers, and a copy of the statement shall be filed in the office of the city clerk.” Assuming that these sections apply to cases where an officer is lowered in rank, as well as to cases of suspension and removal, admittedly the requirements of the charter were complied with by the respondent. The main contention of the petitioners is that the attempted reduction in rank was invalid, because of the respondent’s failure to notify them of his proposed action, in accordance with the requirements of the civil service law. Sts. 1904, c. 314, § 2; 1906, c. 210. As the single justice who heard the cases ordered that the petitions be dismissed,- the only question before us. on the report is whether the petitioners are entitled to a writ of mandamus as matter of law. The notice of which they complain was not liter [581] ally and formally correct. We cannot say, however, that the single justice was not warranted in finding that “under these circumstances the fair construction of the order is that the writer has decided to reduce the rank of the officer, and that that decision will take effect January 7.” The statutory requirement that the person sought to be lowered in rank shall be notified of the proposed action, and furnished with a copy of the reasons, is mainly for the purpose of enabling him to secure a public hearing if he desires one, and to answer charges where any are preferred against him. Here no charges were made against either petitioner. The reason assigned for his action by the respondent was that there were too many sergeants on the police force; and so far as appears the reason alleged was true, and was declared in good faith. If the petitioners desired to controvert this, it is found by the single justice that they had ample time in which to ask for a hearing before the order took effect. The statute does not prescribe the length of time for giving notice, and they were entitled to a reasonable notice under the circumstances. McCarthy v. Commonwealth, 204 Mass. 482, 485. In fact they never requested a public hearing, asked for no extension of time, and apparently took no action until April 11, when these petitions were filed. As the report discloses no error of law, the decision of the single justice must be given effect; and in each case the petition must be dismissed. Hodgdon v. Fuller, 193 Mass. 331. Andrews v. Mines Corp., Ltd. 205 Mass. 121. So ordered.