Dooling v. Fire Com'r of Malden

• Decision Date: 27 May 1941
• Parties: DOOLING v. FIRE COM'R OF MALDEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

309 Mass. 156

34 N.E.2d 635

DOOLING

v.FIRE COM'R OF MALDEN.

Supreme Judicial Court of Massachusetts, Middlesex.

May 27, 1941.

Exceptions from Superior Court, Middlesex County; Good, Judge.

Mandamus proceeding by William J. Dooling against the Fire Commissioner of Malden to compel respondent to recognize the petitioner as chief of the Fire Department of the City of Malden. Judgment for respondent, and petitioner brings exceptions.

Exceptions overruled.

Argued before FIELD, C. J., and DONAHUE, QUA, DOLAN, and COX, JJ.

E. J. Bushell, of Malden, for petitioners.

R. S. McCabe, of Boston, for respondent.

DOLAN, Justice.

This is a petition for a writ of mandamus to compel the respondent fire commissioner of the city of Malden to recognize the petitioner as chief of the fire department of that city. The case was heard by a judge of the Superior Court who made the following ‘Finding and Order. I do not find that the respondent (in abolishing the office of chief of the fire department) acted with malice, bad faith and without just cause as alleged in the petition. Judgment may be entered dismissing the petition.’ The exceptions of the petitioner to certain rulings and refusals to rule by the judge and to his order for judgment bring the case before us.

The petitioner was appointed chief of the fire department involved in June 7, 1933, after having served with some interruptions as clerk to the fire commissioner for about eleven years in all. Section 5 of the rules and regulations of the department relating to his office set forth that ‘The Chief is the executive officer of the Fire Commissioner. As such he is the channel of all communications between the Commissioner and the department, except as provided for in Rule 19, section 1.’ Section 5 of the rules provides that he shall perform such duties as may be required by law or ordinance, shall have command at fires of the entire department and all persons not connected with the department and shall direct all measures he may deem necessary to extinguish fires. Chiefs of fire departments do not come within the provisions of the civil service laws.

On April 13, 1940, the respondent, who had been in office but a few weeks, notified the petitioner in writing of his decision to abolish the position of chief of the fire department of the city effective as of May 11, 1940, and that thereafter the petitioner's services would no longer be required. This notice also contained the following statements: ‘My reasons for this action are that it is in the interest of economy and that this position is no longer necessary. If you desire to be heard regarding this matter I will be very pleased to arrange a hearing for you.’ On April 16, 1940, the petitioner notified the respondent in writing that under the provisions of chapter 48 of the General Laws he claimed the ‘right of a hearing,’ that he requested a hearing, and that, without waiving any rights hemight have under the law, he would continue to carry on the duties of chief. He also filed an answer ‘pursuant to Genral Laws, Chapter 48, Section 58.’ On April 17 he was notified in writing that a hearing would be granted him on April 23. The hearing was held, at which the respondent heard all the witnesses the petitioner desired to call, but did not offer any evidence himself ‘to justify his action.’ On May 9, 1940, the respondent notified the petitioner in writing that, after carefully considering all the evidence introduced by the petitioner at the hearing, he was convinced that the position of chief should be abolished, that the notice sent by him to the petitioner on April 13 remained effective, and that the position would be abolished as of May 11, 1940. An official bulletin signed by the respondent under date of May 9, 1940, and addressed to the officers and members of the fire department reads as follows: ‘Effective May 11, 1940, the office of Chief of the Malden Fire Department is abolished. From and after that date all duties prescribed in the Rules and Regulations of the Fire Department for the Chief of the Fire Department shall be taken over and assumed by the Senior Deputy Chief of the Fire Department, Loran A. Keddie.’

At the close of the evidence the petitioner filed eleven requests for ‘rulings of law.’ The judge denied some of these requests, allowed others with the comment that they stated good law but were inapplicable to the facts found, and allowed two requests without qualification. The petitioner has not addressed his argument, either oral or written, to an exception taken to the denial of any particular request or to any particular ruling made by the judge, but sets up threes issues as those presented for determination, namely, (1) whether the respondent acted in bad faith and without just cause in abolishing the office; (2) whether the petitioner was entitled to and did receive a fair and full hearing prior to the abolition of his office; and (3) whether the abolition of his office was illegal and in violation of G.L.(Ter.Ed.) c. 48, § 58.

In connection with these issues it is necessary to consider only the petitioner's second, third and ninth requests for ‘rulings,’ which were denied by the judge. The second request was ‘That the respondent is bound by the provisions of said Tenure Act, G.L. (Ter.Ed.) c. 48, § 58, which secured to the Fire Chief the right to hold office during good behavior or until disabled, and that he was not given the right thereunder, either expressly or impliedly to abolish the office of Fire Chief.’ The third request was ‘That the respondent was guilty of bad faith in abolishing the office of Fire Chief with utter disregard for the provisions of the Tenure Act.’ The ninth request was ‘That, as matter of law, in view of the Tenure Act, it was not within the province of the respondent to abolish the’ office in question. St. 1881, c. 169, § 16, gave to the city council of Malden power to establish a fire department, and to the mayor and aldermen exclusive power to appoint and remove the officers and members thereof. This section was repealed by St. 1892, c. 182, §§ 1, 2, which created a board of three fire commissioners and provided that they ‘shall establish a fire department * * * to consist of such officers and members as [they] shall from time to time determine.’ This statute also provided that the commissioners ‘shall appoint said officers and members and may remove any officer or member in their discretion.’ By St.1908, c. 93, this board was abolished and the office of a single fire commissioner was created; and it was provided that the commissioner should be the lawful successor of the fire commission created by St.1892, c. 182, and have all the powers and privileges conferred and be subject to the...