Duffey v. Rickard

• Decision Date: 11 January 1950
• Docket Number: 57.
• Citation: 71 A.2d 41,194 Md. 228
• Parties: DUFFEY v. RICKARD, Chief of Police et al.
• Court: Maryland Court of Appeals

71 A.2d 41

194 Md. 228

DUFFEY v. RICKARD, Chief of Police et al.

No. 57.

Court of Appeals of Maryland.

January 11, 1950

Roland C. Ready, Hagerstown (Norman I. Broadwater and James J. Treacy, Hagerstown, on the brief), for appellant.

Francis H Urner, Hagerstown (David K. McLaughlin, Hagerstown, on the brief), for appellees.

Before MARBURY, C J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL JJ.

MARKELL, Judge.

This is an appeal from an order dismissing a petition for mandamus to compel respondents to 'restore' petitioner to 'the office or position of a regular policemen of Hagerstown'. The case was heard before Judge Mish, without a jury, on petition, answer and testimony.

Petitioner was appointed a regular policeman in May, 1946, and held this position until the night of Friday, August 13, 1948. The previous night, i. e., Friday morning after midnight, a woman he had arrested on the street for drunkenness made a serious charge against him. Friday night, just before midnight petitioner, when about to enter the City Hall to report for duty on the shift beginning at 12:01 A.M., met the Chief of Police, Captain Rickard. The Chief says he told petitioner he would have to suspend him pending an investigation of the woman's complaint and told him to be there Saturday morning at ten o'clcok, that he wanted to talk with him, but he failed to show up. Petitioner says the Chief 'discharged' him on August 13, 1948, said he could not let him go to work; said, come in tomorrow and resign, I am getting tried of you. Petitioner came in about 10:30, got his pay check, asked for the Chief and was told he was out, did not wait and did not return. He had told the Chief at midnight he would not resign. He 'figured' he 'was in hot water'.

In the course of the next week, he tried unsuccessfully to consult two different lawyers, and consulted a third, who several times discussed the matter with the Chief of Police, including the possibility of a hearing before the Board of Street Commissioners, but did not ask a hearing and never made any formal demand, written or oral, upon the Board for a hearing. Petitioner himself talked to Mr. Knight, the Police Commissioner, one of the Street Commissioners, respondents and to the Mayor, who said he could not talk to the Chief of Police. Late in September the lawyer had ceased to represent petitioner. The Chief sent a detective to petitioner's house to get his uniform and other equipment, which petitioner handed over. Later he got employment with a bottling company, and made application for a position at the House of Correction. In his written application he said, referring to his employment as policeman, 'Not satisfied'. He says this was not true, but was put on the application only 'to get a job'. He worked at the House of Correction from November till January 15, 1949, when he was discharged because of his record as a policeman. He then employed his present counsel, who on January 27, 1949 wrote the Board 'in reference to his dismissal' as policeman by the Chief of Police and requested a hearing. The letter was ignored and the petition for mandamus followed. Before January 27, 1949 petitioner had never demanded a hearing, salary or assignment to duty, and no formal charges had been filed against him with the Board. Other facts are stated in Judge Mish's opinion, which concisely covers the case.

Judge Mish in his opinion says: 'By the petition filed in these proceedings on February 21st, 1949, the petitioner seeks to have the court issue the writ of mandamus directed to the defendants, 'commanding them to restore the petitioner to the office and position of a regular policeman of Hagerstown, Maryland.'

'The contention of the petitioner is that he was summarily discharged from his position as a policeman of the City of Hagerstown without being given a hearing before the Board of Street Commissioners of Hagerstown in accordance with the requirements of the so-called 'Police Tenure Act'.

'On the other hand the City contends that no hearing was had before the Street Board because he quit his position after charges were made as to his conduct by the Chief of Police and therefore in legal contemplation he resigned from the force.

'By Chapter 92 of the Acts of 1898 the Board of Street Commissioners were given power and authority to appoint regular policemen for the City of Hagerstown and it was provided that 'said policemen shall be subject to removal for cause'. While the Act has been frequently amended, during the period of fifty years since its enactment, this particular provision has never been changed and the Act remains in force as codified in Section 358 of Article 22 of the Code of Public Local Laws, the most recent amendment being embodied in Chapter 209 of the Acts of 1945.

'The construction of this particular statute was before the Court of Appeals in the case of Street Commissioners [of Hagerstown] v. Williams, 96 Md. 232, 53 A. 923, and in a learned and exhaustive opinion by Chief Judge McSherry its import and meaning was made clear. It was there held that under the Act policemen of Hagerstown are entitled to hold their offices so long as they are competent and efficient and that the power of the board to remove can only be exercised for some cause affecting the ability or fitness of an officer to perform his duties and after notice of charges against him and an opportunity to be heard. And Acts in other jurisdictions of similar import have been given the same construction. 99 A.L.R. 354-358 and notes.

'It is apparent from a reading of the Williams case that in the absence of a resignation of the officer the Chief of Police should have preferred formal charges before the Board of Street Commissioners. But the facts in the Williams case are entirely different from those in this case. Williams was peremptorily dismissed upon informal charges of inefficiency without a hearing by a majority of the Street Board and within ten days thereafter filed his petition for the writ of mandamus in this court. * * * And it was under those circumstances that he was ordered restored to his office. * * *

'But even if I were legally authorized to grant this relief, I do not think it is called for under all the facts and circumstances of this case.

'It was clearly the duty of Officer Duffey to report to the office of the Chief of Police the day following his suspension on August 13th, 1948. He had no right to ignore the order of his superior officer even if the Chief asked...