Mcauliffe v. City of New Bedford
| Decision Date | 06 January 1892 |
| Citation | 29 N.E. 517,155 Mass. 216 |
| Parties | MCAULIFFE v. MAYOR, ETC., OF CITY OF NEW BEDFORD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Cummings & Higginson, for petitioner.
T.F Desmond, for respondent.
This is a petition for mandamus to restore the petitioner to the office of policeman in New Bedford. He was removed by the mayor upon a written complaint, after a hearing the mayor finding that he was guilty of violating the thirty-first rule of the police regulations of that city. The part of the rule which the petitioner seems certainly to have violated is as follows: "No member of the department shall be allowed to solicit money or any aid, on any pretense, for any political purpose whatever." There was also evidence that he had been a member of a political committee, which likewise was prohibited. Both parties agree that the city had accepted chapter 319 of the Acts of 1890 by virtue of which the members of the police force held office "during good behavior, and until removed by the mayor *** for cause deemed by him sufficient, after due hearing." It is argued by the petitioner that the mayor's finding did not warrant the removal; that the part of the rule violated was invalid, as invading the petitioner's right to express his political opinions; and that a breach of it was not a cause sufficient, under the statutes.
One answer to this argument, assuming that the statute does not make the mayor the final judge of what cause is sufficient, and that we have a right to consider it, (Ham v. Board of Police, 142 Mass. 90, 95, 7 N.E. 540; Osgood v. Nelson, L.R. 5 H.L. 636, 649,) is that there is nothing in the constitution or the statute to prevent the city from attaching obedience to this rule as a condition to the office of policeman, and making it part of the good conduct required. The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. There are few employments for hire in which the servant does not agree to suspend his constitutional rights of free speech as well as of idleness by the implied terms of his contract. The servant cannot complain, as he takes the employment on the terms which are offered him. On the same principle the city may impose any reasonable condition upon holding offices within its control. This condition seems to us reasonable, if that be a question open to revision here.
The petitioner also argues that he has not had due hearing. The first ground for this argument is some testimony reported that the mayor said that he did not care about the evidence he knew what McAuliffe had been doing; he knew all about it. A sufficient answer to this is that the fact is not found by the judge who tried the case, and, if necessary to support his findings, we should have to assume that he did not believe the evidence. Next, it is said that the charges against the petitioner were not stated specifically, and that when specifications were called for they were refused. The judge was well warranted in finding that the mayor did all that justice required. The...
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