Bailen v. Bd. of Assessors of Chelsea

• Decision Date: 20 May 1922
• Citation: 135 N.E. 877,241 Mass. 411
• Parties: BAILEN v. BOARD OF ASSESSORS OF CITY OF CHELSEA et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

241 Mass. 411

135 N.E. 877

BAILEN

v.BOARD OF ASSESSORS OF CITY OF CHELSEA et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 20, 1922.

Report from Supreme Judicial Court, Suffolk County.

Petition by Jacob Bailen for a writ of mandamus addressed to the Board of Assessors of the City of Chelsea and others. The petition was dismissed by a single justice, and the cause reported for the determination of the full court. Order dismissing petition affirmed.

The petition alleged that petitioner was duly appointed one of the board of assessors of the city for a period of three years, and duly qualified, and thereafter continued in the faithful discharge of his duties; that the board of alderman voted to remove him on the ground of incompetency and for the best interests of the city; that he was never informed of the proposed vote and had no notice of any complaint and was given no hearing, etc.; that a motion was made to place in nomination the name of Samuel J. Abramovitz as assessor, and he received five votes; that the vote was presented to the mayor to be approved or disapproved, and was vetoed by him; that the board of aldermen attempted to disregard such veto by a ruling of its chairman that it was out of order; that Abramovitz claimed to be one of the assessors and usurped title to such office; that petitioner had made many efforts to proceed with the other members of the board of assessors to perform the field and valuation work, but that they refused to recognize him as assessor and were performing the duties required by law and interfering with his performance of such duties. The answers admitted most of the allegations, and, for the purposes of the hearing, other allegations were admitted. The petitioner asked a ruling as matter of law that a writ of mandamus should issue, which the single justice refused.

Samuel L. Bailen and Frank Leveroni, both of Boston, for petitioner.

Louis R. Kiernan, City Sol., of Chelsea, for respondents Ford and Donahoe.

Samuel Cutler, of Boston, for respondent Abramovitz.

DE COURCY, J.

The petitioner was duly appointed a member of the board of assessors for a period of three years from February 6, 1920. On April 4, 1921, the board of aldermen voted that said Bailen ‘be removed from office on the ground of incompetency and for the best interests of the city’; and at the same meeting the respondent Abramovitz was elected in his place. It is admitted, for the purposes of this case, that no notice or hearing was given to the petitioner, and that he always discharged the duties of his office faithfully and without criticism. The main question raised by the report is whether the attempted removal was ineffectual, because made without notice or hearing. The answer depends upon the construction of the Chelsea Charter, St. 1911, c. 680, pt. 2, § 57, which provides that--

‘The board of aldermen shall appoint, may remove, and shall fix the salary, if any, of all administrative officers of the city.’

An assessor admittedly is such an officer.

It was said in Attorney General v. Stratton, 194 Mass. 51, 53, 79 N. E. 1073, 1074 (9 L. R. A. [N. S.] 572, 120 Am. St. Rep. 527,10 Ann. Cas. 883):

‘Whatever the rule may be in reference to municipal corporations in other parts of the country, we are of opinion that, in the cities and towns of Massachusetts, there is no power to remove public officers except that which is given by the statutes.’

Many of our statutes require notice, hearing, or statement of cause or reasons as conditions precedent to the exercise of the power of removal. Ransom v. Boston, 192 Mass. 299, 78 N. E. 481,7 Ann. Cas. 733;Murphy v. Mayor of Boston, 220 Mass. 73, 107 N. E. 378;Tucker v. Boston, 223 Mass. 478, 112 N. E. 90;Thomas v. Municipal Council of Lowell, 227 Mass. 116, 116 N. E. 497.

Where the power is given to remove ‘for cause,’ a removal is not authorized without notice and hearing, even though the statute does not so provide in terms. Ham v. Boston Board of Police, 142 Mass. 90, 7 N. E. 540. And see Ayers v. Hatch, 175 Mass. 489, 492, 56 N. E. 612;Hogan v. Collins, 183 Mass. 43, 66 N. E. 429. Where, however, a public officer is appointed during pleasure, or where the power of removal is discretionary, the power may be exercised without notice or hearing. For instance, in O'Dowd v. Boston, 149 Mass. 443, 21 N. E. 949, it was held that such discretionary power existed under a statute authorizing the board of directors of the East Boston ferries to remove subordinates ‘for such cause as they may deem sufficient and shall assign in their order for removal.’ St. 1885, c. 266, § 5. Lacy v. Selectmen of Winchendon, 240 Mass. 118, 133 N. E. 90, involved the right of the selectmen of a town to remove the superintendent of streets. The statute as originally phrased provided that he might be removed ‘when in the judgment of the selectmen the best interests of the town so requires.’ St. 1889, c. 98. It was held that a removal without hearing was justified. See, also, Knowles v. Boston, 12 Gray, 339;Chandler v. Lawrence, 128 Mass. 213;Williams v. Gloucester, 148 Mass. 256, 19 N. E. 348.

The statute under consideration gave to the board of aldermen a general power to appoint and remove, without more. The contention of the petitioner is that under such a statute an officer, at least where he holds for a definite term, cannot be removed without notice of charges and a hearing. While there is some authority for this contention, it was decided to the contrary in this commonwealth in the case of Attorney General v. Donahue, 169 Mass. 18, 47 N. E. 433. There the officer held office for a definite term and was removed before its expiration and without a hearing by the city council. The statute provided:

‘The city council may, by a two-thirds vote in each branch, voting by yeas and nays, remove any of said officers without the consent of the mayor.’ St. 1896, c. 415, § 2.

The removal was held to be valid. See, also, Commonwealth v. Harriman, 134 Mass. 314. This decision is in accord with leading authorities elsewhere. In Eckloff v. Dist. of Columbia, 135 U. S. 240, 10 Sup. Ct. 752, 34 L. Ed. 120, a lieutenant of police for years was removed from office by the commissioners of the District of Columbia without written charges, notice, or hearing. The statute empowered the commissioners ‘to abolish any office, to consolidate two or more offices, reduce the number of employés, remove from office and make appointments...