Murphy v. Casey

• Decision Date: 24 May 1938
• Citation: 15 N.E.2d 268,300 Mass. 232
• Parties: HOWARD H. MURPHY v. WILLIAM CASEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

300 Mass. 232

15 N.E.2d 268

HOWARD H. MURPHY v. WILLIAM CASEY.

Supreme Judicial Court of Massachusetts, Suffolk.

May 24, 1938

November 9, 1937.

Present: RUGG, C.

J., FIELD, DONAHUE LUMMUS, QUA, DOLAN, & COX, JJ.

Public Officer. Governor. Executive Council. Words, "Advice and consent."

A removal of a public officer by the Governor with the advice and consent of the Council under G.L. (Ter. Ed.) c. 30, Section 9, was valid without the officer being given an opportunity for a hearing by the Council.

PETITION, filed in the Supreme Judicial Court for the county of Suffolk on May 11, 1937, for a writ of mandamus.

The petition was dismissed by Field, J. The case was argued at the bar in November, 1937, before Donahue, Lummus, Qua, & Dolan JJ., and afterwards was submitted on briefs to all the Justices.

F. X. Hurley, for the petitioner. J. J. Ronan, Assistant Attorney General, for the respondent.

DONAHUE, J. The petitioner, who on December 23, 1935, was appointed commissioner of agriculture by the Governor with the advice and consent of the Council, brings this petition for a writ of mandamus against the respondent who, on April 7, 1937, was nominated for that office by a succeeding Governor, which nomination was confirmed by the Council on April 14, 1937. The petitioner seeks the issuance of a writ commanding the respondent to cease to act as commissioner of agriculture and to yield the office to the petitioner.

The petition was heard by a single justice of this court on a "statement of agreed facts." He found the facts to be as agreed in the statement and entered an order dismissing the petition "not as a matter of discretion." The case is here on exceptions of the petitioner to the entry of that order and to the refusal of the single justice to give certain requested rulings.

On March 18, 1937 after due notice to the petitioner, a hearing was held before the Governor on the matter of the petitioner's removal from the office of commissioner of agriculture on charges that he was incompetent, lacked the necessary qualifications and experience and had been guilty of neglect of duty. No member of the Executive Council was present. The petitioner through his attorney seasonably objected in writing to any hearing before the Governor, on the grounds that he was "entitled to a full hearing" before the Council and that "any hearing before . . . [the Governor] is legally superfluous and not a legal incident to the removal from office" of the petitioner, and on the ground that the charges were "insufficient in law for a removal for cause of one who has title to the office of commissioner of agriculture." At the hearing witnesses were called and examined by the Governor's secretary and cross-examined by the attorney for the petitioner. The petitioner declined the invitation of the Governor to testify or to introduce other evidence.

The Governor, on March 31, 1937, sent to the Council a communication stating that he had, that day, subject to the Council's advice and consent, removed the petitioner from the office of commissioner of agriculture on the grounds which are stated above, and that this action of the Governor was submitted to the Council for its advice and consent. At the same time there was read to the Council a written statement of the Governor. It contained a summary of the proceedings and of the evidence at the hearing before the Governor and his findings. This was made a matter of record by the Council. A written statement of the petitioner's attorney was also before the Council at that time. It recited the objection of the petitioner to a hearing before the Governor alone and his desire for a hearing before the Council and stated his contention that the charges made were insufficient in law. The Council by vote declared that its advice and consent were given to the action of the Governor in removing the petitioner from the office of commissioner of agriculture. On April 14, 1937, the respondent was appointed to that office by the Governor with the advice and consent of Council. He duly qualified and assumed, and since has performed, the duties of that office.

The position of commissioner of agriculture was created, and the duties of the office were defined, by statute: -- G.L. (Ter. Ed.) c. 20, Sections 1, 2, 3, 4. The petitioner while holding that office was a public officer. Malinoski v. D. S. McGrath, Inc. 283 Mass. 1 , 9, and cases cited. He was appointed for a term of three years and was entitled to hold the office for that period of time unless "sooner removed in accordance with law." G.L. (Ter. Ed.) c. 30, Section 8. It is provided by statute that "Unless some other mode of removal is provided by law, a public officer, if appointed by the governor, may at any time be removed by him for cause, and, if appointed by him with the advice and consent of the council, may be so removed with its advice and consent." G.L. (Ter. Ed.) c. 30, Section 9. As no other method of removal of a commissioner of agriculture is provided by law, the petitioner could be removed from that office by the Governor only for cause and with the advice and consent of the Council.

The statute does not expressly provide that the removal of a public officer shall be after a hearing. In this Commonwealth, however, where the statutory ground for the removal is "for cause," the statute is construed as giving to a public officer the right to notice of the charges against him and to an opportunity to be heard on those charges. Ham v. Boston Board of Police, 142 Mass. 90 , 95. Tucker v. Boston, 223 Mass. 478 . Bailen v. Assessors of Chelsea, 241 Mass. 411 , 414. Corrigan v. School Committee of New Bedford, 250 Mass. 334 , 338. See also McKenna v. White, 287 Mass. 495 , 498.

The petitioner had due notice of the charges against him and a hearing before the Governor. It is not contended that there was impropriety in the method in which the hearing was conducted or that he was deprived of an opportunity to be heard or to have witnesses called by him heard.

The "Statement of Agreed Facts" recites that "the only questions open on the record are, first, the sufficiency of the charges and, secondly, whether the removal of the petitioner under G.L. [Ter. Ed.] c. 30, Section 9, could be effected without the Executive Council having heard witnesses." The issues before us are further limited. It was not here contended that the charges were insufficient. The petitioner's brief states that he relies solely on the issue "whether the removal of the petitioner could be effected legally without the Council having heard the witnesses."

The Council is part of the executive branch of the government of the Commonwealth. The Constitution recognizes executive matters of two kinds which may come before the Council. There are matters which must be considered by the Governor and Council acting together as an executive board. See c. 1, Section 2 art. 3; c. 2, Section 1, art. 4; art. 13 of the Amendments. There are other matters in which the Governor as the supreme executive magistrate is authorized by the Constitution to act with the advice and consent of the Council. See c. 1, Section 1, art. 4; c. 2, Section 1, art. 8, art. 11. Opinion of the Justices, 190 Mass. 616 , 618. ...