Sims v. O'meara

• Decision Date: 03 January 1907
• Citation: 79 N.E. 824,193 Mass. 547
• Parties: SIMS v. O'MEARA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

193 Mass. 547

79 N.E. 824

SIMS v. O'MEARA.

Supreme Judicial Court of Massachusetts, Suffolk.

January 3, 1907

COUNSEL

B. F. Briggs, for plaintiff.

Leo A Rogers, for respondent.

OPINION

SHELDON J.

The petitioner was in no sense a public officer. The ordinary duties of a janitor at a police station are in no respect similar to those of a police officer. He was not a member of the police department. His appointment does not come within the provisions of St. 1878, p. 200, c. 244, § 3; and the limitation imposed upon the power of removal of the officers or members of the police department was not created for his benefit, and is not available for his protection. The doctrine of Ham v. Boston Board of Police, 142 Mass 90, 7 N.E. 540, cannot be applied in this case. St. 1885, p 777, c. 323, contains nothing to prevent the board of police of Boston from discharging one of their employés whenever in their judgment it might be advisable to do so; nor has our attention been called to any subsequent legislation having this effect, unless it be found in the statutes regulating the civil service and fixing the right of veterans presently to be considered. O'Dowd v. Boston, 149 Mass. 443, 21 N.E. 949; Attorney General v. Donahue, 169 Mass. 18, 47 N.E. 433. He was not protected by the provisions of St. 1885, p. 701, c. 266, § 5, that officers and boards of the city of Boston may remove their subordinates 'for such cause as they may deem sufficient and shall assign in their order for removal,' because the police commissioners were not officers and did not constitute a board of the city of Boston, but were appointed by and were responsible to the Governor of the commonwealth. Com. v. Plaisted, 148 Mass. 375, 383, et seq., 19 N.E. 224, 2 L. R. A. 142, 12 Am. St. Rep. 566; Phillips v. Boston, 150 Mass. 491, 494, 23 N.E. 202.

But it is claimed that the petitioner was a 'veteran holding an office or employment in the public service' within the meaning of St. 1896, p. 535, c. 517, § 5, now embodied in Rev. Laws, c. 19, § 23, and accordingly could not be removed without the hearing provided for in that section. But the difficulty with this position is that, as appears by the agreed facts, the board of civil service commissioners did not, until after the petitioner's discharge, include the petitioner's employment in its list of positions to be filled by its certification, nor had the petitioner before his discharge been registered in the office of the board as a veteran or been certified by it for appointment; and this petition must be determined upon the facts which existed at the time of his discharge. Ayers v. Hatch, 175 Mass. 489, 490, 56 N.E. 612. It was said by Morton, J., referring to St. 1896, p. 534, c. 517, in that case: 'It is plain, it seems to us, that the statute was intended to provide for the preference of veterans in the offices and employments coming within the scope of St. 1884, p. 346, c. 320, commonly known as the civil service act, and the acts in amendment thereof, and that the provisions of section 5 apply to veterans who hold offices and employments under and pursuant to the statutes relating to civil service and the rules established by the civil service commissioners. Section 1 defines the word 'veteran' as used in the act. Sections 2, 3, and 6 relate to the examination and appointment of veterans to positions 'in the public service classified under chapter...