Curtis v. City of Boston

• Decision Date: 16 September 1921
• Parties: CURTIS, Police Com'r, v. CITY OF BOSTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

239 Mass. 401

132 N.E. 181

CURTIS, Police Com'r,

v.CITY OF BOSTON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 16, 1921.

Report from Supreme Judicial Court, Suffolk County.

Petition by Edwin U. Curtis, as Police Commissioner for the City of Boston, for a writ of mandamus against the City of Boston and others. Reported by a single justice, on the pettiion, answer, and return the record of the city council referred to in the return and admitted as evidence, and his findings of fact, for the determination of the full court. Writ granted.

The petition sought to compel the city, its mayor, and the members of the city council to provide accommodations for the police of the city, as specified in a communication to the mayor from the police commissioner. The answer admitted allegations of the petition concerning the necessity of additional accommodations and buildings, and alleged various acts of the mayor and city council, commencing in 1914, with a view to providing a new police station. In 1917, with the approval of the police commissioner, the city council appropriated money for the purchase of a site, title to which was afterwards acquired, but no building was ever constructed. In 1920, the mayor, with the approval of the commissioner, recommended the sale of that site and the purchase of a different site, but four members of the council consistently voted against such action.Herbert Parker and James H. Devlin, Jr., both of Boston, for petitioner.

Arthur D. Hill, Corp. Counsel, and Samuel Silverman, Asst. Corp. Counsel, both of Boston, for respondents.

RUGG, C. J.

This is a petition for a writ of mandamus. The petitioner is the police commissioner for the city of Boston. The respondents are the city of Boston, the mayor of the city of Boston and the nine members of the city council of the city of Boston. The general purpose of the petition is to compel the respondents to provide additional accommodations for the police of the city of Boston. The case comes before us by report on the petition and answer, certain records of the city council incorporated in the answer and admitted as evidence, and findings of fact made by the single justice.

It is alleged in the petition and admitted by the answer that ‘ACCOMMODATIONS, BUILDINGS AND EQUIPMENT Therefor, for the police of said city, in addition to and in substitution for those now and heretofore in use, have long been of imperative necessity to maintain and utilize the police force of said city and to preserve and promote its efficiency and the health and welfare of the members of said police force,’ and that the petitioner has notified the respondents of the specific requirements for accommodation for the Boston police, and has made due demand and requirement that the same be provided, and that ‘immediate provisions by the said city of Boston for the said accommodations for the police of said city as specified and required as aforesaid by the police commissioner is of imperative and insistent necessity, for the welfare, health and efficiency of the members of the said police force and for the maintenance and preservation of the public peace and order.’ The findings of fact by the single justice in substance are that additional accommodations and buildings for the Boston police have long been and are now needed to maintain and utilize that police force and to preserve and promote its efficiency and the health and welfare of its members and that the petitioner has made due requisition therefor and that the respondents have not in fact provided such accommodations or buildings and have taken no further steps to that end than are set forth in the record. That action briefly summarized is that on June 8, 1914, the then mayor of Boston called the attention of the city council to the necessity for further accommodations for the police department and advised the acceptance of St. 1913, c. 263, which authorized the erection of a building for the use of the police and other departments and the sale of certain lands and the appropriation of the proceeds for the new building. The statute was accepted by the city council. Appropriation was made for the cost of a proposed new building to be used for a police station and school purposes on the site of the ‘old probate building.’ By July, 1916, that project had been abandoned and that appropriation was rescinded in September, 1916, and at the same time an appropriation of $15,000 ‘for plans and temporary quarters for police station in Court Square’ was passed. Subsequently sites on Arch and Oliver streets, and on Franklin street were considered, one of which at least was approved by the then police commissioner, but neither was purchased. In November, 1917, as the culmination of negotiations and proceedings,appropriation was made for the purchase of a site at Arch street and Hawley Place and title thereto was acquired by the city on or about January 30, 1918. Apparently from this time on for a considerable period war conditions made it inadvisable to attempt to build. On September 29, 1919, the city council authorized and on October 2, 1919, the mayor approved the preparation of plans and specifications for a new building for Police Station 2. On February 9, 1920, the mayor sent a communication to the city council recommending the sale of the Arch street and Hawley Place site and the purchase of a larger lot at the corner of Milk and Sears streets at an initial cost of about $45,000 less than that of the other lot. From and after that time until the filing of the present petition on October 1, 1920, the mayor sent to the city council four further separate communications each recommending the purchase of the lot at Milk and Sears streets. By five affirmative and four negative votes the original and each subsequent order or proposal to that end was rejected by the city council, a two-thirds vote of its members being requisite for favorable action. During that period also the acquisition of another site known as the Revere House property had been considered by the city council and disapproved by the mayor.

The position of the police commissioner so far as now material is, briefly stated, that in 1917 the Arch street and Hawley Place site was approved by the person then holding that office. It is open to inference, although not expressly stated or found, that in April, 1919, the present incumbent would have been satisfied with the immediate erection of a building on that site. On December 15, 1919, at the request of the mayor the attention of the petitioner was directed to the Milk and Sears streets site and two days later he wrote the mayor saying that he favored the purchase of the latter site provided there should be ‘no delay in the construction of a new Station 2.’ On April 21, 1920, the petitioner wrote to the mayor reviewing somewhat the necessity for additional accommodations for the police, referring to the obligation imposed by statute upon the city...