Stiles v. Municipal Council of City of Lowell

• Decision Date: 19 June 1919
• Citation: 233 Mass. 174
• Parties: ANDREW G. STILES v. MUNICIPAL COUNCIL OF THE CITY OF LOWELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

233 Mass. 174

ANDREW G. STILES v. MUNICIPAL COUNCIL OF THE CITY OF LOWELL.

Supreme Judicial Court of Massachusetts, Middlesex.

June 19, 1919

January 13, 14, 1919.

Present: RUGG, C.

J., LORING, BRALEY CROSBY, & CARROLL, JJ.

Municipal Corporations, Officers and agents. Civil Service. Actionable Tort. Lowell. Negligence, Of municipal officers. Damages, In tort. Evidence, Competency.

The members of the municipal council of the city of Lowell, in removing an officer whom the charter of the city empowers them to remove under the laws regulating the civil service, perform an executive or administrative act which in this particular must be performed in a judicial manner.

The cloak of office does not protect executive or administrative officers who interfere with rights of individuals in ways not authorized by law, but they are liable personally for such wrongful interference.

A majority of the municipal council of Lowell, in removing from office the city treasurer and tax collector, failed to notify him of their proposed action and to furnish him with a copy of the reasons which they contended constituted just cause for removal. Held, that the members who constituted such majority acted without authority in law and without jurisdiction and were liable personally for damage caused to such officer by their wrongful acts.

St. 1911, c.

645, Section 40 relating to the removal by the municipal council of Lowell of certain city officers, does not delegate judicial power to the council.

The city treasurer and tax collector of Lowell, after his removal as above described, successfully prosecuted mandamus proceedings for reinstatement and the final order of the court therein awarded him costs. Thereafter he brought an action of tort to enforce against the majority of the council their personal liability, in which it was held, that he was entitled to have considered as an element of his damages the amounts reasonably paid by him for counsel fees in procuring reinstatement to office.

At the trial of the action of tort above described, it appeared that, after the reinstatement of the plaintiff in office following the mandamus proceedings, the municipal council by vote required of him a bond with a surety company as a surety, conditioned upon the faithful performance of his office, and that the plaintiff was unable to secure such a bond owing to the incidents attendant upon the litigation, so that he was compelled to resign his office. His salary was paid in full to the time of his resignation. He was unable to obtain more lucrative employment elsewhere. Held, that the plaintiff was entitled to have the jury consider as an element of his damages the loss he sustained by reason of his being thus compelled to resign and being unable to obtain more lucrative employment elsewhere.

At the trial of the action above described, testimony of agents of various bonding companies, tending to show that the refusal of the companies to furnish a bond to the plaintiff was due to the incidents connected with the litigation attendant upon the plaintiff's removal and reinstatement, was competent.

At the trial of the action above described, the plaintiff was entitled to have the jury consider as an element of his damage such mental suffering on his part as was a natural and proximate result of the wrongful acts of the defendants.

Good faith and absence of malice in the perpetration of the wrong to the plaintiff were held to constitute no defence in the action above described.

At the trial above described, it appeared that the defendants had contended that they were justified in removing the plaintiff from office because he had left large sums of the city's money on deposit with a certain bank in preference to other banks and had failed to collect sums due to the city from that bank as interest on daily balances. It also appeared that actions at law had been brought against the plaintiff and the sureties on his official bond, after his removal from the office to which he later was reinstated, for failure to collect such interest.

Subject to exceptions by the defendants, the plaintiff was allowed to testify that he had had a conversation with one of the defendants in which that defendant had stated that he would "get even" with the president of the bank in question because its president had refused to honor his note and also to testify that he had been informed from various sources that there was no ground for the action against him and the sureties on his bond. Held, that the testimony as to the conversation with one of the defendants was admissible as tending to show malice toward the plaintiff, (which then was an issue, although it later was withdrawn as an issue by the plaintiff,) and that both that conversation and the other testimony of the plaintiff were admissible as tending to refute the defendants' contention that the plaintiff's mental suffering was caused, not by their wrongful action in removing him, but by the controversy as to the relations between the plaintiff and the bank in question.

TWO ACTIONS OF TORT against three of the five members of the municipal council of the city of Lowell for damages suffered by the plaintiff when he was wrongfully removed from the office of city treasurer and collector of taxes, the first time being on January 8 and the second being on February 20 and March 6, 1917. Writs dated June 23, 1917, and January 5, 1918.

In the Superior Court the actions were tried together before J. F. Brown, J. It appeared that on the occasion of the vote of the municipal council of the city of Lowell, which removed the plaintiff on January 8, 1917, the three defendants, who constituted a majority of the council, alone voted in the affirmative. On the occasion of the votes of February 20 and March 6, 1917, the vote of the council was unanimous. By decisions of this court on two petitions for writs of mandamus, reported in Thomas v. Municipal Council of Lowell, 227 Mass. 116 , and Stiles v. Municipal Council of Lowell, 229 Mass. 208 , it was determined that the removals of the plaintiff from office were wrongful. The final orders of the court, after rescripts from this court, in each of those cases awarded costs to the petitioner, the plaintiff in these actions.

After the plaintiff's reinstatement in accordance with the writ which issued upon the second petition, the municipal council ordered that the plaintiff be required to give a surety company bond in the sum of $50,000. Evidence was admitted, subject to exceptions by the defendant, to the effect that the plaintiff was unable to procure such a surety company bond because the companies did not wish to undertake the risk by reason of the legal history of the case and the political discord existing between the plaintiff and the municipal council of Lowell.

One of the contentions of the defendants in support of their action in removing the plaintiff was that the plaintiff improperly left large sums of money on deposit with the Lowell Trust Company in preference to other banks and that he had failed to collect interest due the city from that bank on daily balances.

The defendants offered to prove that all the proceedings and actions in reference to both removals of the plaintiff were on the advice of the city solicitor, both as to the mode of procedure and the form of notice and all things they did in reference to the votes of removal. This evidence was excluded subject to exceptions by the defendants.

The defendants then offered to prove that in all that they did in reference to the two removals and all things pertaining to it, they acted in good faith and on advice of the city solicitor, and that they were acting in a judicial capacity; and they excepted to a ruling of the judge excluding the above testimony. Thereupon counsel for the plaintiff stated that for the purposes of this trial the plaintiff did not contend that the defendants were actuated by any actual malice, or that there was any lack of good faith on their part.

Other material facts and evidence and the exceptions of the defendants are described in the opinion.

At the close of all the evidence, the judge denied motions of the defendants that verdicts be ordered for them. The defendants asked for the following rulings, applicable to both cases, which were refused:

"1. If the jury find that these defendants honestly and in good faith attempted to remove the plaintiff from his office, then their verdict should be for the defendants.

"2. In order to recover the plaintiff must prove by a fair preponderance of the evidence that in attempting to remove the plaintiff from office, these defendants were actuated by malice in fact.

"3. If the jury find that in attempting to remove the plaintiff from office these defendants were acting in a judicial capacity over a subject matter concerning which they had jurisdiction and that they did not exceed their jurisdiction, then these defendants are not liable although the jury find that they erred or made a mistake of judgment while acting in the above manner.

"4. That inasmuch as the defendants had the right to vote to remove the plaintiff from office, but made an honest mistake in reference to the procedure required by law, and failed to adopt and follow said procedure, then their mere failure in this respect would not make them liable in this action.

"5. If the defendants at the time they voted to remove the plaintiff from office were members of a legislative body and all that they did in attempting to remove the plaintiff was done by them as members of the said legislative body, and that the said legislative body had the jurisdiction of the removal of the plaintiff, then these defendants are not liable if they acted in good faith, although ...