McCarthy v. Emerson

• Decision Date: 22 May 1909
• Citation: 202 Mass. 352,88 N.E. 668
• Parties: McCARTHY v. EMERSON, Superintendent of Streets.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

202 Mass. 352

88 N.E. 668

McCARTHY v. EMERSON, Superintendent of Streets.

Supreme Judicial Court of Massachusetts, Suffolk.

May 22, 1909

COUNSEL

Colby & Bayley, for petitioner.

Arthur L. Spring, Asst. Corp. Counsel, for defendant.

OPINION

SHELDON J.

The petitioner was employed as a foreman in the paving division of the street department of the city of Boston, and was removed or indefinitely suspended from that position on or about June 2, 1908, by the respondent, who was and is the superintendent of streets of that city. He asks in this petition for a writ of mandamus to compel the respondent to restore him to his former position. He was duly enrolled in the classified list of the civil service of the commonwealth, and by the terms of St. 1904, p. 266, c. 314 as modified by St. 1905, p. 162, c. 243, he could not be removed or indefinitely suspended 'except for just cause and for reasons specifically given in writing.' This statute also provided that he should be notified of such proposed action, should be furnished with a copy of the reasons required to be given, and should, if he so requested in writing, 'be given a public hearing and be allowed to answer the charges preferred against him either personally or by counsel.' The question is whether as matter of law it appears affirmatively from the admitted facts and from the evidence which was heard by the single justice, that his removal was contrary to these provisions of the statute.

There is no doubt that the reason assigned for the petitioner's removal, 'neglect of duty,' was a sufficient cause and there is no doubt that if he was given a public hearing upon this charge and the specifications filed thereunder, the respondent's conclusion was final and cannot be reviewed by this court. Ayers v. Hatch, 175 Mass. 489, 492 56 N.E. 612; Hogan v. Collins, 183 Mass. 43, 66 N.E. 429; Dunn v. Mayor of Taunton, 200 Mass. 252, 258, 86 N.E. 313. Whether he was given such a hearing depends upon the meaning of that word in the statute already referred to. The petitioner's contention is that it ought to be taken as meaning that he must have substantially a fair trial, though perhaps an informal one, upon the charge preferred against him; the respondent claims that the statute was intended merely to prevent a person's being discharged without publicity, and without having a chance to appear before his superior officer and make whatever statement he might desire, and have the transaction made a matter of public record.

The respondent argues that the difference between the language of the statute before us and that of other statutes upon similar subjects is such as to maintain his contention. This statute provides that the person sought to be removed shall, if he so requests in writing, 'be given a public hearing and be allowed to answer the charges preferred against him either personally or by counsel.' St. 1904, p. 266, c. 314, § 2 (Rev. Laws, c. 19, § 23), as amended by St. 1905, p. 100, c 150, gives to veterans the right to 'a full hearing' after at least 72 hours' written notice with a statement of the reasons for the proposed action, and provides that the hearing shall be before certain named boards or officers. St. 1906, p. 176, c. 210, as amended by St. 1907, p. 217, c. 272, provides that police officers and members of the district police, with certain exceptions, shall not be removed, etc., 'except for just cause and for reasons specifically given in writing,' and gives them the same right to a hearing provided for by St. 1904, p. 266, c. 314, § 2. In St. 1900, pp. 47, 91, cc. 69, 133, provision is made for a hearing before the board of selectmen. But we do not consider that the fact that in this act of 1904 provision is not made for a hearing before an independent tribunal can be made the ground for a difference in the construction of these statutes. There is no less need for a full and proper hearing, in the nature of a trial, if there is reason to apprehend some bias on the part of the appointed tribunal against the person to be heard than if the former were wholly free from prejudice. If the statute before us had provided simply that the employé or officer sought to be removed should first have an opportunity to give an explanation of his conduct, a different question would be presented. People v. Thompson, 94 N.Y. 451. But in that very case it was said by the court (page 463) that under a statute providing that certain officers might 'be removed by the mayor for cause and after an opportunity to be heard,' the charges...