Ellis v. Shepard

• Decision Date: 04 January 1918
• Citation: 229 Mass. 147,118 N.E. 231
• Parties: ELLIS v. SHEPARD et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

229 Mass. 147

118 N.E. 231

ELLIS

v.SHEPARD et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 4, 1918.

Exceptions from Supreme Judicial Court, Suffolk County.

Petition for writ of mandamus by Frederick M. Ellis against Harvey N. Shepard and others. The petition was dismissed, and petitioner excepts. Exceptions overruled.Harry F. R. Dolan, of Boston, for petitioner.

Henry C. Attwill, Atty. Gen., and H. Ware Barnum, Asst. Atty. Gen., for respondents.

PIERCE, J.

‘This is a petition for a writ of mandamus, brought in the Supreme Judicial Court for the County of Suffolk under Revised Laws, chapter 19, section 34, as amended by Statute 1910, chapter 359, to compel the respondents, as they are civil service commissioners for the commonwealth, to authorize the appointment of the petitioner as head of the police department of the city of Cambridge and the payment of compensation therefor, and to recognize the appointment of the petitioner to said office as legal and not in violation of the civil service law or any rule or rules made thereunder.’

The first contention of the petitioner is that police commissioners, chiefs, marshals, and chiefs of police departments, by the terms of the act are exempt from civil service rules by express enumeration if not otherwise excluded by reason of their election to office by the people, by a city council or by an appointment which is subject to confirmation by the executive council or city council of any city.

An examination of the Statute of 1884, c. 320, § 15, and a comparison of the order of its clauses with their arrangement as reenacted in R. L. c. 19, § 9, make it plain that the Legislature intended that the civil service rules should apply to all members of the police department below the rank of commissioner, superintendent, marshal or chief, regardless of the manner of their election, appointment and confirmation. It also is manifest that the heads of the police departments, whatever be their title, were excepted from the civil service laws and rules which applied to all other members of the police department by the statutory limitation and definition of the words ‘members of’ as used in the act, and not by reason of the dignity and title of any office or of the manner of election or induction to office. The effect of the acceptance of St. 1911, c. 468, by the city of Cambridge upon St. 1884, c. 320, § 15; R. L. c. 19, § 9, was that the statute thereafter read (as if originally enacted without limitation or restriction), ‘such rules shall apply to members of police and fire departments.’ So read the terms of the act make every member of the police department subject to the laws and rules of the civil service whether he be the head of the police department (a principal department), or on ordinary patrolman.

It is further contended that the Statute of 1911, c. 468, so far as concerned the city of Cambridge, was repealed by implication by the adoption of a new charter, plan B, under St. 1915, c. 267, pt. 3, which among other provisions provides, section 6, relative to the removal of heads of departments and officers of municipal boards, as follows:

‘The mayor may, with the approval of a majority of the members of the city council, remove any head of a department or member of a board before the expiration of his term of office, except members of the school...