Driscoll v. Burns

• Decision Date: 29 January 1913
• Citation: 213 Mass. 493,100 N.E. 640
• Parties: DRISCOLL v. BURNS, Mayor.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

213 Mass. 493

100 N.E. 640

DRISCOLL v. BURNS, Mayor.

Supreme Judicial Court of Massachusetts, Middlesex.

January 29, 1913

COUNSEL

Walter A. Buie and Wm. J. Shanahan, both of Boston, for petitioner.

Frank W. Kaan, of Boston, for respondent.

OPINION

RUGG C.J.

This is a petition for a writ of mandamus to compel the mayor of Somerville to reinstate the petitioner to the position of patrol driver in the police department of that city. The respondent removed the petitioner from his place after the preliminary proceedings required by law. The latter then petitioned the police court of Somerville in accordance with St. 1911, c. 624 for a review of this action of the mayor. That court found that the removal was made without proper cause, and reversed the order of removal and ordered the petitioner to be reinstated. The only contention made by the respondent is that St. 1911, c. 624, is unconstitutional because in contravention of that portion of article 30 of the Declaration of Rights which prohibits the judicial department of government from exercising executive powers. The statute provides that the action of an officer or board in 'removing, suspending, lowering or transferring' a person holding certain offices classified under the civil service law may be 'reviewed' by a court whose decision 'shall be final and conclusive upon the parties.'

It is argued that because it has been said that the 'power to appoint and the power to remove officers are in their nature executive powers' (Murphy v. Webster, 131 Mass 482, 488), it follows that no step in the removal of one from office can be vested by law in the courts. But such a conclusion is not sound. The civil service law has for one of its objects the establishment of a tenure for certain public officers and employés, which shall be secure from arbitrary removal by executive power. One means of accomplishing this end is to require executive officers to make certain removals only after preparing a specification of charges as grounds for removal and giving to the office-holder or employé a public hearing upon those charges. Such a hearing, although held before an officer whose main functions are executive, is 'in the nature of a judicial investigation.' McCarthy v. Emerson, 202 Mass. 352, 354, 88 N.E 668, 669. It requires no argument to demonstrate that the question whether certain charges of misconduct or inefficiency have been substantiated by...