Streeter v. City of Worcester

• Decision Date: 19 October 1900
• Parties: STREETER v. CITY OF WORCESTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

177 Mass. 29

58 N.E. 277

STREETER v. CITY OF WORCESTER.

Supreme Judicial Court of Massachusetts, Worcester.

October 19, 1900

COUNSEL

Charles

T. Tatman, for petitioner.

A. P Rugg and E. I. Morgan, for respondent.

OPINION

KNOWLTON J.

This is a petition for a writ of mandamus to compel the city of Worcester to restore the petitioner to the position of a police officer of that city, which position he had held by appointment under St. 1888, c. 360. Under this statute he was subject to removal by the mayor and aldermen, for cause upon hearing. On March 24, 1896, he was served with an order of removal for neglect of duty, signed by the mayor. St. 1893 c. 444, is an act to revise the charter of the city of Worcester, which was duly accepted by the city, and which went into effect on the first Monday of January, 1894. Section 26 of this act provides for the appointment of all officers of the city by the mayor, subject to confirmation by the board of aldermen, except where other specific provision is made, and also provides for the removal by the mayor of all officers so appointed. Section 41 provides for the establishment of a police department by the city council, and for the appointment by the mayor of the officers and members of the department so established. Section 55 repeals all acts and parts of acts inconsistent with this act, with a proviso that, 'except as herein otherwise provided, all persons who, at the time when the repeal shall take effect, shall hold any office under the said acts, shall continue to hold the same according to the tenure thereof.' Under the authority conferred by section 41, the city council, by an ordinance approved on May 22, 1895, established a police department.

The question arises whether the petitioner was subject to removal by the mayor alone, under the provisions of this act, or only by the mayor and aldermen, under the provisions of St. 1888 c. 360. If, after the establishment of the police department under the new charter, the mayor had appointed the petitioner to the police department in accordance with the provisions of the ordinance, it would have been clear that he would have been subject to removal by the mayor for cause, without action by the board of aldermen. There is strong ground for the contention of the respondent that the above provision for the continuance in office of all persons holding office under former acts is inapplicable to police officers after the establishment of a police department by ordinance, under St. 1893, c. 444, § 41, inasmuch as the establishment of such a department, the officers of which were subject to appointment and removal by the mayor alone, would come within the words, 'except as herein otherwise provided.' It well may be argued that the provision for the continuance of persons in office was intended merely to relieve from the...