Cassidy v. Transit Dep't of City of Boston

• Decision Date: 02 February 1925
• Parties: CASSIDY v. TRANSIT DEPARTMENT OF CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

251 Mass. 71

146 N.E. 357

CASSIDY

v.TRANSIT DEPARTMENT OF CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 2, 1925.

Report from Supreme Judicial Court, Suffolk County.

Mandamus by Alexander Cassidy against the Transit Department of the City of Boston to require respondent to certify name of petitioner to city council for hearing as to cause for removal from employment. Writ ordered issued by single justice, and case reported to full court. Writ issued.

P. C. Borre, of Boston, for petitioner.

J. P. Lyons, Asst. Corp. Counsel, of Boston, for respondent.

SANDERSON, J.

Upon the admitted facts in the case, the petitioner is a veteran and so certified on the civil service rolls, and entitled to veteran's preference within the meaning of G. L. c. 31. On or about September 21, 1921, the civil service department of the commonwealth assigned him for permanent service as a subway blacksmith, Boston Transit Department. Under date of April 2, 1924, he was notified in writing by Thomas F. Sullivan, chairman of that department, that his services would be terminated at the close of business April 5, by reason of lack of work. On May 13, 1924, this petition for a writ of mandamus was filed, alleging that the petitioner was illegally discharged by the head of a city department because he was not given the notice and hearing to which a veteran is entitled under G. L. c. 31, § 26. The defendants in their answer denied that the petitioner was employed by a city department, and contended that the transit department of the city of Boston was created by an act of the Legislature for the purpose of constructing subways in Boston and that it is not governed, in the removal of employees, by G. L. c. 31, § 26. The single justice of this court who heard the case found that the petitioner was employed as a blacksmith by the transit department of the city of Boston, Spec. St. 1918, c. 185; that he was discharged for lack of work, as stated by the department in the order for his discharge; and that G. L. c. 31, § 26, was not complied with. He ordered the writ to issue and reported the case for the determination of the full court.

The Boston Transit Commission was created by St. 1894, c. 548, § 23, approved July 2, 1894. By section 24 of the act the commission was given authority to choose such engineers, clerks, agents, officers, assistants and other employees as it may deem necessary, to determine the duties and compensation of such employees, and to remove the same at pleasure. The term of office of members of the commission was extended from time to time until July 1, 1918 (Spec. St. 1917, c. 368). In Mahoney v. Boston, 171 Mass. 427, 429, 50 N. E. 939,the court in discussing the status of employees of the transit commission said:

‘The commission constitutes in effect a special board, established by the Legislature for the purpose of laying out and building in the city of Boston at the expense of that municipality public ways along certain lines and between certain termini, and for that purpose it is given large powers and is rendered independent of any control or direction on the part of the city of Boston. The city authorities have nothing to do with the manner in which the work shall be done, or with the persons engaged in its performance; they have no control over the transit commissioners, and no voice in fixing the terms and rates for the use of the subway when completed, or any part thereof.’

By Spec. St. 1918, c. 185, entitled ‘An act to provide for the transfer of the powers of the Boston Transit Commission to the city of Boston,’ it was provided that upon the expiration of the term of office of the Boston Transit Commission ‘the city of Boston shall have all the powers and privileges, and be subject to all the duties, restrictions and liabilities heretofore conferred or imposed upon the commission and remaining in effect at the date of the passage of this act.’ Section 1. The powers and duties therein referred to were to be exercised by the mayor, commissioner of public works, and city treasurer, or by such person or persons, not exceeding three, as may be appointed by the mayor. The powers conferred and duties imposed by the act are exercised by three men appointed under its authority and known as the transit department of the city of Boston.

The question to be decided is, whether the right to remove employees at pleasure, given the transit commission in the act creating it, is now in force so that employees in the transit department of the city of Boston may be discharged at pleasure. The employees working in this department are in the service of the city of Boston and are its employees.

[1][2] Veterans employed in the public service of a city are entitled to the notice and hearing provided for in G. L. c. 31, § 26, before being removed from such employment. The city of Boston in employing and discharging laborers is subject to the statutes and rules relating to the civil service. G. L. c. 31, §§ 3, 47; McCarthy v. Emerson, 202 Mass. 352, 88 N. E. 668;...