Ransom v. City of Boston

• Decision Date: 03 January 1907
• Citation: 193 Mass. 537,79 N.E. 823
• Parties: RANSOM v. MAYOR OF BOSTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

193 Mass. 537

79 N.E. 823

RANSOM v. MAYOR OF BOSTON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 3, 1907

COUNSEL

Berry & Upton, for petitioner.

Philip Nichols, for respondents.

OPINION

SHELDON J.

Upon the petitioner's offer of proof, he had a right to employment by the city of Boston, so long as he was able to do the work for which he was employed and the occasion for that work continued. Rev. Laws, c. 19, §§ 23, 24. The rules established by the civil service commissioners under the latter section, so far as they bear upon this question, are referred to in Ransom v. Boston, 192 Mass. 299, 78 N.E. 481, in which the rights of this petitioner to recover wages were considered.

But it is contended by the defendant that the petitioner is not entitled to enforce this right by mandamus to compel the respondents to reinstate him in the employment which has been wrongfully taken from him; that his sole remedy is by an action of contract to recover the pecuniary damage which he has suffered by the breach of his contract of employment; and at any rate that, having brought such an action, which is still pending (see Ransom v. Boston, ubi supra), he has elected to avail himself of a remedy inconsistent with that which he now seeks, and so cannot maintain this petition.

It is not disputed that when a public officer has been unlawfully ousted from his position the proper means for him to regain his office is by petition for a writ of mandamus. Fowler v. Brooks, 188 Mass. 64, 65, 74 N.E. 291; Russell v Wellington, 157 Mass. 100, 31 N.E. 630; Conlin v Aldrich, 98 Mass. 557. But it is already settled that the plaintiff's rights are on a par with those of a public officer. As was said in the opinion in Ransom v Boston, 192 Mass. 299, 78 N.E. 481: 'We see no valid distinction, at least as to the right of continued employment, between the case of a veteran who has been duly registered, certified and employed in the labor service of a city or town and the case of a veteran who has been duly examined, registered and employed as a public officer. The Legislature intended to provide as much in the former case as in the latter for the continuous employment of a veteran. * * * The manifest purpose of the statute was to secure the continuous employment of veterans in the labor service of the commonwealth and in cities and towns in preference to all other persons except women, if the veterans are competent to perform the labor.' We ought not to say that the officers of the city of Boston can frustrate this legislative intent with no other liability than for the payment of damages to the particular individual who has suffered by their misconduct.

Nor has the plaintiff elected, by bringing his former suit, to enforce a remedy inconsistent with that for which he now asks. According to his offer of proof, that suit was brought for the wages which he had lost for the time during which he was excluded from his employment. His position in that suit was the same as it is in this petition, that he was still lawfully in the employment of the city and had a right to remain so. That suit was not for the recovery of damages for the wrongful breach of his contract. Accordingly the doctrine of Butler v. Hildreth, 5 Metc. 49, and the numerous cases which have followed that decision cannot harm the petitioner, even if we should hold that the prosecution of one remedy was barred by the mere fact that the same claimant had previously, in another suit, sought to recover upon a different and inconsistent ground. Nor is there anything in the opinion in Ransom v. Boston, 192 Mass. 299, 78 N.E. 481, at variance with sustaining this petition. The statement that the petitioner should not be required to establish his rights by mandamus before maintaining that action, or restricted to a remedy for the recovery of his wages against the person who had been employed in his stead is far from being a decision that he could not maintain a...