Hill v. Fitzgerald

• Decision Date: 03 January 1907
• Parties: HILL v. FITZGERALD et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

193 Mass. 569

79 N.E. 825

HILL v. FITZGERALD et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 3, 1907

COUNSEL

Chas W. Bartlett, Stephen F. Keyes, and Thos. J. Boynton, for petitioner.

Samuel M. Child, for respondents.

OPINION

BRALEY, J.

Unless the office held by the petitioner was lawfully abolished, or he has been guilty of unreasonable delay, he is entitled to relief by mandamus. Keough v. Holyoke, 156 Mass 403, 31 N.E. 387; Ransom v. Mayor of Boston, 193 Mass. 537, 79 N.E. 823. It was the purpose of Rev. Laws, c 192, § 12, to protect a veteran holding office in the public service from capricious or arbitrary removal in whatever form the attempt might be made. If he becomes incapacitated, or his office, or employment ceases to be necesary in the proper administration of the department with which he is connected he can neither be removed, nor his office abolished without first giving to him a statement of the reasons for the proposed ceases to be necessary in the proper administration hearing. In cities this power is vested in the mayor before whom the hearing takes place, and the statement of reasons as well as the written notice must issue from the tribunal which alone is authorized to pass upon the inquiry. But a technical compliance with these requirements can be waived, and while the act of the superintendent in giving the notice and stating the reasons although presumably done with the knowledge and assent of the mayor did not comply with the statute, yet the petitioner was not misled, and having voluntarily attended with counsel, and been accorded a fair hearing, he cannot rely on this omission to defeat the proceedings if otherwise valid. Streeter v. Worcester, 177 Mass. 29, 31, 58 N.E. 277. The statute, however, is not satisfied, nor can there be a valid removal or abolition of the office unless after the hearing, if the decision is adverse, a written order reciting the cause or causes on which such action is founded has been signed by the mayor, whose action is final and not subject to review if as matter of law the reasons given are sufficient. Ayers v. Hatch, 175 Mass. 489, 492, 56 N.E. 612; Hogan v. Collins, 183 Mass. 43, 46, 66 N.E. 429. To him alone is given the power of decision, and this duty cannot be delegated. Com. v. Smith, 141 Mass. 135, 140, 6 N.E. 89. At the completion of the hearing, if any decision was thereafter rendered, it was not communicated by the mayor to the petitioner, nor if a broad construction is given to his letter to the superintendent can this communication be construed as a written order abolishing the office with a specific statement of the reasons. Because of this failure to comply with the plain provisions of law the notice given by the superintendent that the petitioner's office had ceased to exist was a nullity. But the granting of the writ being discretionary the remedy is barred if the petitioner unreasonably neglected to enforce his right. Waldron v. Lee, 5 Pick. 323; Hill v. County Commissioners, 4 Gray, 414; Murray v. Stevens, 110 Mass. 95; J. H. Wentworth Co. v. French, 176 Mass. 442, 57 N.E. 789; Streeter v. Worcester, ubi supra.

No precise definition can be formulated as to what is sufficient to constitute such want of diligence, but at law, upon a petition for mandamus, as well as upon a bill for equitable relief, this question must depend upon the circumstances of each particular case. Snow v. Boston Mfg. Co., 153 Mass. 456, 458, 26 N.E. 1116; J. H. Wentworth Co. v. French, ubi supra; Hayward v. Eliot Nat. Bank, 96 U.S. 611, 24 L.Ed. 855. The mere lapse of time since the right of action accrued is important, but not absolutely decisive, although if the equitable claim is analogous to a legal right which is controlled by a statute of limitations equity will apply the same limit within which an action must be begun. Broadway National Bank v. Baker, 176 Mass. 294, 57 N.E. 603; Sunter v. Sunter, 190 Mass. 449, 456, 77 N.E. 497. In commencing and prosecuting a suit at law which was inadequate to restore him to office the petitioner did not lose his present remedy because both were not concurrently instituted, for it is found by the report that there was no intentional waiver, nor abandonment of the claim that he had been unlawfully deposed. Blake v. Traders' National Bank, 145 Mass. 13, 17, 12 N.E. 414; People v. State Treasurer, 24 Mich. 468. He promptly engaged counsel and acted under their advice, and while his poverty alone might not relieve him from negligence, he was informed that a suit might be brought whenever he obtained the pecuniary means. Hayward v. Eliot National Bank, ubi supra. After the suit at law was begun in which he was advised that the legality of the mayor's action could be determined, the petitioner has been diligent, and the delay of two years before bringing that suit cannot under the circumstances be said to constitute such acquiescence by him in his dismissal as to require us to deny appropriate relief. Pope v. Salamanca Oil & Refining Co., 115 Mass. 286, 291; Morse v. Hill, 136 Mass. 60, 66; Wood v. Westborough, 140 Mass. 403, 5 N.E. 613; Ransom v. Mayor of Boston, ubi supra.

The petitioner also asks that damages may be assessed. In proceedings in mandamus at common law the return could not be traversed, and, if sufficient in law, judgment followed for the defendant, and the only remedy of the relator was an action on the case for making in fact a false return. Howard v. Gage, 6 Mass. 462; Lunt v Davison, 104 Mass. 498; Tucker v. Justices of Iredell, 46 N.C. 451, 459. This action however was abolished subsequently by St. 1852, p. 231, c. 312, § 38 (Gen. St. c. 145, § 13; Pub. St. c. 186, § 14); and upon the return to the alternative writ, if the material...