Donaghy v. MaCy

• Decision Date: 24 November 1896
• Parties: DONAGHY v. MACY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

167 Mass. 178

45 N.E. 87

DONAGHY v. MACY et al.

Supreme Judicial Court of Massachusetts, Bristol.

November 24, 1896

COUNSEL

T.F. Desmond, for petitioner.

E.D Stetson, for respondent.

OPINION

HOLMES J.

This is a petition for a writ of mandamus. It prays that the respondents may be compelled to permit the petitioner to discharge the duties of second assistant engineer of the fire department of the city of New Bedford until the end of his term of office, and that the respondent Dahill may be ordered to refrain from acting as second assistant engineer. On January 1, 1894, the petitioner was duly elected to his office, under the ordinances then in force, for the term of four years, ending in January, 1898. Ordinances of 1882, c 11,§ 4. In 1896 this ordinance was repealed, and a new ordinance was adopted, which, so far as it affects the present case, is like the old one, except that the time of election is April instead of January, and the first election under it is for two years, ending in 1898. After that, the elections are for four years. The petitioner suggests a doubt whether the powers of the city council were not exhausted by one exercise, so that the second ordinance is void; and argues that, however that may be, inasmuch as by section 5 of the earlier ordinances he was removable for cause, he could not be removed otherwise, but had a contract with the city which no more could be avoided by a repeal of the ordinance than by a more direct attempt to remove him without cause.

We have no doubt that the city council had power to pass the second ordinance. St.1852, c. 177. It is not necessary to resort to the words "from time to time," in section 1, to convince us that the powers given by that section were not exhausted by a single exercise. This being so, we think that the respondent Dahill lawfully fills the office created by the later ordinances; and, even if it were true that the petitioner has a contract which binds the city, we should hesitate long before requiring the city to keep the earlier created office open for the purpose of specifically performing it. We should be much more likely to leave the petitioner to his remedy by action.

But we know of no decision in this commonwealth that the petitioner has a contract which binds or purports to bind the city to keep him in his office after the office shall have been abolished lawfully except for the contract. It is going a long way to say that there was any contract, however qualified, to continue the...