Ham v. Board of Police of City of Boston

• Decision Date: 28 June 1886
• Citation: 142 Mass. 90,7 N.E. 540
• Parties: HAM, Petitioner, etc. v. BOARD OF POLICE OF THE CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

142 Mass. 90

7 N.E. 540

HAM, Petitioner, etc. v. BOARD OF POLICE OF THE CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

June 28, 1886

The petitioner alleged that on or about the thirty-first day of August, 1885, while he was a member of the police force of Boston, and holding the position of chief inspector, he received from the board of police of the city of Boston--said board having been created by chapter 323 of the Acts of 1885--a communication in writing, requesting him to resign his office as a member of the police force of said city on or before the first day of September next thereafter; that thereupon the petitioner inquired of said board as to the cause of such request, and if any charges had been brought against him, or if it, the board, had any to prefer, but the board refused to give any legal cause, and stated that no charges had been brought, and that they had none to prefer that the petitioner refused to resign from said force, and on the fifth day of September said board of police passed an order removing him from said police force, and have since refused to allow petitioner, although willing, to perform the duties thereof. The petitioner further alleged that, under the powers vested by the statute in said board of police, the board had authority only to remove him from his office of policeman for legal cause; that in exercising such power of removal they acted in a judicial capacity, and could remove him only after charges had been preferred against him, notice thereof given him, a hearing held thereon, with an opportunity for him to present his defense. The petitioner further alleged that said action of said board tended to injure his character and reputation; and that by such attempted removal, if not restrained, he would lose his rights to be retired upon a pension, to which his long years of service made him eligible. The prayer of the petition was for a writ of mandamus to issue to said board of police commanding it to restore the petitioner to said office of policeman, or show cause why it should not do so. The respondent justified under the powers conferred upon it by chapter 323 of the Acts of 1885, alleging that the vote passed removing the petitioner was within its powers. Hearing in the supreme court, before C. ALLEN, J., who reserved the case for the full court, upon the petition, answer, and facts which appeared at the hearing, as follows:

"(1) The vote of the police commissioners set up in the answer was passed by them without any formal charges being preferred against the petitioner, and without any hearing of him before the commissioners. (2) By St.1876, c 16, the Boston Police Relief Association was incorporated and it passed certain by-laws, under which the petitioner claims to be entitled to certain benefits. (3) Under city ordinances of 1876, continued in 1880, which is to be referred to, a large fund has accumulated, and the petitioner claims to be entitled to certain benefits under the same. (4) Before the removal of the petitioner, the police commissioners orally stated to him that they did not consider him an efficient officer, and that both they and the public had lost confidence in him, and for that reason they proposed to remove him."

COUNSEL

R.D. Smith and Charles Albert Prince, for petitioner.

A.J. Bailey, for respondents.

OPINION

C. ALLEN, J.

This case grows out of the legislation transferring the administration of the police of the city of Boston to a board appointed by the governor of the commonwealth. It is conceded by the counsel for the defendants that under St.1878, c. 244, the board of police commissioners could only remove officers or members of the police department for cause; and that, before a removal for cause could be made, the party must have had notice, and an opportunity to be heard. But it is contended that under St.1885, c. 323, the new board of police, thereby created, has power to remove an officer or member without assigning any cause, and without notice or hearing. And this presents the question to be determined. Section 2 of this statute is as follows:

"The board of police shall have authority to appoint and establish and organize the police of said city of Boston, and make all needful rules and regulations for its efficiency. All the powers now vested in the board of police commissioners in said city of Boston by the statutes of the commonwealth, or by the ordinances, by-laws, rules, and regulations of said city, except as otherwise hereby provided, are hereby conferred upon and vested in said board of police."

The power of removal, which was vested in the board of police commissioners, was expressed in the following language in St.1878, c. 244, § 3: "Any of said officers or members of the department may be removed by the board, for cause." The same power is given to the new board of police, unless in the act of 1885 it is otherwise provided.

It may be at once assumed that it is not necessary that it should be otherwise provided in express terms, if it can be seen from the general purpose and scope of the act that such a change was intended. There is nothing in the act of 1885 which in terms provides that the new board may make such removals without assigning any cause. It is necessary, therefore, to examine and see if such authority is fairly implied.

Section 2 provides that...