Stiles v. Morse

• Citation: 233 Mass. 174,123 N.E. 615
• Parties: STILES v. MORSE et al. (two cases).
• Decision Date: 23 June 1919
• Court: United States State Supreme Judicial Court of Massachusetts

233 Mass. 174

123 N.E. 615

STILES

v.MORSE et al. (two cases).

Supreme Judicial Court of Massachusetts, Middlesex.

June 23, 1919.

Exceptions from Supreme Court, Middlesex County; John F. Brown, Judge.

Actions of tort by Andrew G. Stiles against Charles J. Morse and others. Verdicts for plaintiff, and defendants except. Exceptions overruled.

Qua, Howard & Rogers, of Lowell, for plaintiff.

M. L. Sullivan and J. J. Ronan, both of Salem, for defendant Warnock.

James J. Kerwin and James C. Reilly, both of Lowell, for defendant Morse.

William D. Regan, of Lowell, for defendant Brown.

RUGG, C. J.

These are two actions of tort brought to recover damages for two attempted removals of the plaintiff, the first in January, 1917, and the second in February and March, 1917, from the office of city treasurer and collector of taxes of the city of Lowell. The defendants on those dates were three of the five members constituting the municipal council of Lowell. The municipal council of Lowell was clothed with authority to remove the city treasurer from office for such cause as it deemed sufficient, provided it proceeded in accordance with the law regulating the civil service. St. 1911, c. 645, § 40. It had no power in that regard except by following the terms of that law. The provisions of the civil service law required as essential preliminaries that reasons be specifically given in writing and that the person sought to be removed should be notified of the proposed action and furnished with a copy of the reasons claimed to constitute just cause of removal. The defendants, being a majority of the municipal council, joined in going through the form of adopting orders removing the plaintiff from the office of city treasurer without notifying him of the proposed action and without giving him copy of reasons for removal. Therefore it has been held expressly that the orders ‘were a nullity and were wholly ineffectual’ as attempts to remove the plaintiff from office. Thomas v. Municipal Council of Lowell, 227 Mass. 116, 119, 116 N. E. 497;Stiles v. Municipal Council of Lowell, 229 Mass. 208, 210, 118 N. E. 347. The duty of the defendants to give the notice and hearing to the plaintiff was certain and specific. The statute covered the ground completely, and left nothing to the exercise of discretion. Ransom v. Boston, 193 Mass. 537, 540, 79 N. E. 823.

The defendants, in passing upon the question of the removal of a city officer under civil service rules, were executive or administrative officers. If they had followed the requirements of the civil service laws in making the removal, they then would have been performing functions to some extent judicial. The power to remove an officer in the public service is in its nature executive, when considered by itself alone. Murphy v. Webster, 131 Mass. 482. When, as essential prerequisites to the exercise of that power, there must be a formulation of specific charges as grounds for removal, notice of those charges to the person to be removed, opportunity to him for a hearing, followed by a hearing and decision, then the hearing and decision partake also of the ‘nature of a judicial investigation.’ McCarthy v. Emerson, 202 Mass. 352, 354, 88 N. E. 668, 669 (132 Am. St. Rep. 484,16 Ann. Cas. 500);Driscoll v. Mayor of Somerville, 213 Mass. 493, 494, 100 N. E. 640;Swan v. Justices of Superior Court, 222 Mass. 542, 548, 111 N. E. 386;State v. Common Council of City of Superior, 90 Wis. 612, 619, 64 N. W. 304. The functions of the members of the municipal council are like those of selectmen in deciding upon the qualifications of voters, which, as was said by Chief Justice Shaw, are ‘in this respect to some extent judicial.’ Blanchard v. Stearns, 5 Metc. 298, 300. Speaking with accuracy, the removal by a municipal council under these circumstances is still an executive or administrative act which must be performed in this particular in a judicial manner. See Levangie's Case, 228 Mass. 213, 117 N. E. 200. Treating the liability of the defendants in its executive or administrative aspect, they are bound to act in accordance with the law. They acquire no authority in the premises except such as the law confers. The plaintiff had an interest in remaining in office, of which he could not be deprived except in accordance with law. Continuance in office was valuable to him both as a means of support and as matter of reputation. Ham v. Boston Board of Police, 142 Mass. 90, 95, 7 N. E. 540;Hill v. Boston, 193 Mass. 569, 575, 79 N. E. 825. The incumbent of an office carrying emolument has rights protected from assault by third persons, although as against the state itself his relation may be of a different nature. Ashley v. Three Justices of the Superior Court, 228 Mass. 63, 73, 116 N. E. 961. Personal liability attaches to executive or administrative officers who interfere with rights of individuals in ways not authorized by law. The cloak of office is no protection to them even when acting in good faith. The principle by which personal liability is fixed on field drivers for taking stray cattle except as provided by the statute (Coffin v. Field, 7 Cush. 355), on members of the board of health for killing a well horse honestly but mistakenly supposed to have glanders (Miller v. Horton, 152 Mass. 540, 26 N. E. 100,10 L. R. A. 116, 23 Am. St. Rep. 850), on selectmen and other officers when acting as members of an election or registration board in refusing to put on the voting list and to permit to vote a man emtitled to vote (Larned v. Wheeler, 140 Mass. 390, 5 N. E. 290,54 Am. Rep. 483), on assessors for making an illegal assessment (Stetson v. Kempton, 13 Mass. 272, 283,7 Am. Dec. 145), and in general on municipal officers for acts of personal misfeasance in performance of public duty (Moynihan v. Todd, 188 Mass. 301, 74 N. E. 367,108 Am. St. Rep. 473), is controlling when the position of the defendants is considered as executive or administrative. If their position is approached from the viewpoint of exercising the judicial faculty, the same result follows. ‘All inferior tribunals and magistrates * * * if they act without jurisdiction over the subject-matter or * * * if they are guilty of excess of jurisdiction * * * are liable in damages to the party injured by such unauthorized acts.’ Piper v. Pearson, 2 Gray, 120, 122, 61 Am. Dec. 438;Doggett v. Cook, 11 Cush. 262;Clark v. May, 2 Gray, 410, 61 Am. Dec. 470;Sullivan v. Jones, 2 Gray, 570;Kelly v. Bemis, 4 Gray, 83, 64 Am. Dec. 50;Kendall v. Powers, 4 Metc. 553;Brewer v. Casey, 196 Mass. 384, 387, 82 N. E. 45;Von Arx v. Shafer, 241 Fed. 650, 154 C. C. A. 407, L. R. A. 1917F, 427. Although there are contrary decisions on this point, to the effect that good faith may be a defense or that there is liability only if there is malice, the weight of authority is in favor of the absolute liability established so firmly in our jurisprudence by the decisions already cited as not to be open further to discussion. The case at bar is indistinguishable in essence from the established liability of election officers for a well intentioned mistake of judgment in refusing registration and in denying the right to vote to one duly qualified. Lincoln v. Hapgood, 11 Mass. 350;Blanchard v. Stearns, 5 Metc. 298, 300;Kinneen v. Wells, 144 Mass. 497, 504, 11 N. E. 916,59 Am. Rep. 105.

It is plain that the defendants never acquired a jurisdiction to exercise their quasi judicial functions respecting the removal from office of the plaintiff, because they never notified him and never gave him a copy of the charges against him and he did not voluntarily submit himself to their action, but has resisted and asserted the invalidity of their procedure at every point. The full performance of all conditions established by the statute are essential prerequisites to the jurisdiction of the municipal council over the subject-matter of the removal of an officer. There is no delegation of judicial power to the municipal council. Holcombe v. Creamer, 231 Mass. 99, and cases collected at 111, 120 N. E. 354, 359. That hardly could be done under our Constitution, which sharply separates the three departments of government. Boston v. Chelsea, 212 Mass. 127, 98 N. E. 620.

The municipal council was clothed with the power of removal of city officers so long as there was conformity to the requirements of the law. When the members ceased to comply with the law they were acting outside their official capacity and were subjected to responsibility as individuals.

It follows that the court rightly ordered verdicts for the plaintiff for at least nominal damages. Ransom v. Boston, 196 Mass. 248, 81 N. E. 998.

The plaintiff was entitled to have considered as an element of his damages the amounts reasonably paid for counsel fees in procuring reinstatement in office. He was obliged to resort to the court for redress and to employ counsel to that end. Those proceedings were rendered imperative, in order that he might protect his rights, by the tortious conduct of the defendants. The plaintiff was not obliged to incur these expenses through any misfeasance or contract of his own, but wholly by reason of the wrongdoing of the defendants, of which these expenses were the immediate and direct result. As was said in Wheeler v. Hanson, 161 Mass. 376, 37 N. E. 386,42 Am. St. Rep. 408:

‘It has been held more than once in this state, that when the plaintiff has, in consequence of the wrongful conduct of the defendant, been put to expense in the employment of counsel, the amount so paid is an element of damage in an action against the defendant arising out of such wrongful conduct.’ Berry v. Ingalls, 199 Mass. 77, 85 N. E. 191;Maguire v. Pan-American Amusement Co., 205 Mass. 64, and cases collected at 68, ...