Barnes v. Rivers

• Decision Date: 15 October 1912
• Citation: 99 N.E. 464,213 Mass. 1
• Parties: BARNES v. RIVERS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

213 Mass. 1

99 N.E. 464

BARNES v. RIVERS et al.

Supreme Judicial Court of Massachusetts, Hampden.

October 15, 1912

COUNSEL

Edward A. McClintock and John P. Kirby, both of Springfield, for petitioner.

Richard J. Talbot, of Springfield, and Thomas A. McDonnell, of Chicopee, for respondents.

OPINION

RUGG C.J.

This is a petition for a writ of mandamus to reinstate the petitioner in the office of city marshal of the city of Chicopee. The petitioner was appointed to that office in January, 1911, and served until February 15, 1912, when after a hearing he was removed by the respondent Rivers, who was mayor of the city of Chicopee. The petitioner within ten days thereafter brought a petition in the police court of Chicopee praying that the action of the mayor be reviewed, upon which it was found that the order of the mayor removing the petitioner was without proper cause, and it was reversed and the petitioner ordered reinstated. The respondent Reivers refused to recognize this order of the court. The petitioner rests upon St. 1911, c. 468, entitled 'An act to extend the provisions of the Civil Service Act to chiefs of police of certain cities and towns,' and St 1911, c. 624, entitled 'An act relative to removals, suspensions and transfers in the civil service.' The constitutionality of these acts is attacked and their meaning is involved.

1. The constitutionality of these acts cannot be doubted. The office of city marshal of a city has been regarded in a large number of instances and for many years as appointive, and not elective. The Constitution does not establish it as an elective office, and does not fix its tenure. It is an office described by various names and created by law, with differing provisions as to appointment, removal and length of term dependent upon divers statute enacted for, or upon ordinances and by-laws adopted by the several cities and towns. It is within the power of the Legislature to lengthen or shorten the tenure of such an office or to place its incumbents under operation of the civil service law. Taft v. Adams, 3 Gray, 126; Opinion of Justices, 165 Mass. 599, 601, 43 N.E. 927, 32 L. R. A. 350; Graham v. Roberts, 200 Mass. 152, 157, 85 N.E. 1009. The general principle of the Civil Service Law was approved as constitutional in Opinion of Justices, 138 Mass. 601. Its provisions have been enforced in many cases without question. See, for example, Ransom v. Boston, 192 Mass. 299, 78 N.E. 481, 7 Ann. Cas. 733, Garvey v. Lowell, 199 Mass. 47, 85 N.E. 182, 127 Am. St. Rep. 468, McCarthy v. Emerson, 202 Mass. 352, 88 N.E. 668, 23 L. R. A. (N. S.) 487, 132 Am. St. Rep. 484, 16 Ann. Cas. 500, and cases cited elsewhere in this opinion. It is not necessary to consider whether there is any merit in the contention directed against the veteran preference provisions of the Civil Service Act, as these are distinct and severable from the rest of the statute and no question respecting them is involved here. Goldstein v. Conner, 212 Mass. 57, 98 N.E. 701. See Brown v. Russell, 166 Mass. 14, 43 N.E. 1005, 32 L. R. A. 253, 55 Am. St. Rep. 357; Opinions of Justices, 166 Mass. 589, 44 N.E. 625, 34 L. R. A. 58.

2. Whether the tenure of office of a city marshal of a particular city shall be during good behavior or from year to year is a matter of local concern, and not of universal interest. The provision that St. 1911, c. 468, should take effect in cities and towns only upon acceptance by the voters is constitutional and in accordance with longcontinued practice. Graham v. Roberts, 200 Mass. 152, 157, 85 N.E. 1009, and cases there cited; Prince v. Crocker, 166 Mass. 347, 360, 44 N.E. 446, 32 L. R. A. 610. Therefore, the statute became operative in the city of Chicopee upon its acceptance at the annual state election of 1911. Section 1 made applicable 'to the superintendent, chief of police or city marshal in all cities except Boston' the provisions of R. L., c. 19, and all acts in amendment thereof and in addition thereto (which relate to the civil service) and all rules made under the authority of such statutes. The statute in force in 1911 respecting tenure of office was St. 1906, c. 210, as amended by St. 1907, c. 272, section 1 of which provided 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 such office continuously during good behavior.'

3. The effect of these statutes...