Ellis v. Members of Civil Service Commission

Pierce, J. This is a petition for a writ of mandamus, brought in the Supreme Judicial Court for the county of Suffolk under R. L. c. 19, § 34, as amended by St. 1910, c. 359, to compel the respondents, as they are civil service commissioners for the Commonwealth, to authorize the appointment of the petitioner as head of the police department of the city of Cambridge and the payment of compensation therefor, and to recognize the appointment of the petitioner to said office as legal and not in violation of the civil service laws or any rule or rules made thereunder. The first contention of the petitioner is thatpolice commissioners, chiefs, marshals, and chiefs of police departments, by the terms of the act are exempt from civil service rules by express enumeration if not otherwise excluded by reason of their election to office by the people, by a city council or by an appointment which is subject to confirmation by the executive council or city council of any city. An examination of the St. of 1884, c. 320, § 15, and a comparison of the order of its clauses with their arrangement as reenacted in R. L. c. 19, § 9, make it plain that the Legislature intended that the civil service rules should apply to all members of the police department below the rank of commissioner, superintendent, marshal, or chief, regardless of the manner of their election, appointment and confirmation. It also is manifest that the heads of the police departments, whatever be their title, [151] were excepted from the civil service laws and rules which applied to all other members of the police department by the statutory limitation and definition of the words “members of” as used in the act, and not by reason of the dignity and title of any office or of the manner of election or induction to office. The effect of the acceptance of St. 1911, c. 468, by the city of Cambridge upon St. 1884, c. 320, § 15, R. L. c. 19, § 9, was that the statute thereafter read (as if originally enacted without limitation or restriction), “such rules shall apply to members of police andfire departments.” So read the terms of the act make every member of the police department subject to the laws and rules of the civil service whether he be the head of the police department (a principal department) or an ordinary patrolman. It is further contended that the St. of 1911, c. 468, so far as concerned the city of Cambridge, was repealed by implication by the adoption of a new charter, Plan B under St. 1915, c. 267, which among other provisions provides in Part III, § 6, relative to the removal of heads of departments and officers of municipal boards, as follows: “The mayor may, with the approval of a majority of the members of the city council, remove any head of a department or member of a board before the expiration of his term of office, except members of the school committee, officials appointed by the Governor, and assessors where they are elected by vote .of the people. The person so removed shall receive a copy of the reasons for his removal, and he may, if he desires, contest the same before the city council. He shall have the right to be represented by counsel at such hearing.” At the time of the adoption of the charter there was a department of the city known as the department of public safety, established under St. 1912, c. 611, and this department was a consolidation of the police and fire departments existing at the date of the passage of St. 1912, c. 611. On May 22,1917, the city council duly passed an ordinance approved by the mayor abolishing the department of public safety and establishing a fire department and police department. It provides: “Section 4. The police department shall be under the charge of a chief of police department who shall be the head of said department. [152] “Section 5. The said head of said departments shall be appointed by the mayor, subject to confirmation by the city council, for an indefinite period and the mayor may, at any time, with the approval of the city council, remove said heads of said departments or either of them, in accordance with the provisions of the city charter.” The St. of 1911, c. 468, was not expressly repealed by St. 1915, c. 267, and its provisions relating to the appointments and removals are not so inconsistent or unworkable as to involve either a surrender of granted municipal powers or an abatement or modification of any essential provision of St. 1904, c. 314, and St. 1906, c. 210. In the matter of appointments the authority of the mayor is limited only in that his selection of the appointee must be made from a list of competent persons certified to him by the civil service commission. In the matter of removals under the civil service rules, formal charges must be preferred and an opportunity given for a public hearing. Tucker v. Boston, 223 Mass. 478. Under the charter the person removed “shall receive a copy of the reasons for his removal” and has a right to a hearing thereon, and by counsel to contest the same, before the city council. Before removal, under the civil service law or under the charter, the person sought to be removed shall receive a copy of the reasons for his removal, and shall, if he desires, be given a hearing before the city council. St. 1904, c. 314. St. 1915, c. 267, Part III, § 6. The right of appeal to a District Court under St. 1911, c. 624, is not irreconcilable with the procedure of hearings upon charges before the city council sitting as a trial board under St. 1915, c. 267, Part III, § 6. Exceptions overruled.