Thomas v. Municipal Council of City of Lowell

• Decision Date: 25 May 1917
• Citation: 227 Mass. 116
• Parties: ROBERT J. THOMAS v. MUNICIPAL COUNCIL OF THE CITY OF LOWELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

227 Mass. 116

ROBERT J. THOMAS v. MUNICIPAL COUNCIL OF THE CITY OF LOWELL.

Supreme Judicial Court of Massachusetts, Suffolk.

May 25, 1917

March 14 1917.

Present: RUGG, C J., DE COURCY, CROSBY, & CARROLL, JJ.

Lowell. Civil Service.

Mandamus. Words "Measure.

" The provision of the charter of the city of Lowell, St. 1911, c 645,

Section 40, giving to the municipal council power "under the laws regulating the civil service to suspend or remove any executive or administrative officer or head of a sub-department it has the power to appoint, for such cause as it shall deem sufficient," requires that in such suspension or removal the council shall comply with St. 1904, c.

314, as amended by St. 1905, c. 243.

Consequently an attempt by the municipal council of Lowell to remove such an administrative officer without notifying him, as required by St.

1904, c. 314, Section 2, of the proposed action and furnishing him with a copy of the reasons alleged to constitute the "just cause," which under Section 1 must be the basis for removal, and giving him a public hearing if he requests it in writing and an opportunity to answer the charge against him either personally or by counsel, is of no effect, and on a petition by the officer a writ of mandamus may be issued in the discretion of the court ordering his reinstatement.

The giving, to the officer proposed to be removed, of the notice above described and of the opportunity to be heard are conditions precedent to a valid removal, and therefore the fact, that, after the passage by the municipal council of Lowell of an order of removal of such an administrative officer, the officer knew of it and remained in office until the expiration of ten days without demanding a hearing, does not render the removal valid. The word "measure" in Section 28 of the charter of the city of Lowell, St.

1911, c. 645, requiring that when the municipal council shall pass any measure, such measure, with a specified exception, shall take effect at the expiration of ten days from its passage, does not include an order for the removal of an administrative officer under Section 40 of the charter.

In this case the order for removal was held not to have been intended to be a proposal of action, but to be final action, it appearing that other persons, immediately upon the passage of the orders, were elected to fill the vacancies thus attempted to be created.

The remedy given by St. 1911, c. 624, as amended by St. 1915, c. 251, to persons occupying offices classified under the civil service, who wrongfully have been removed therefrom, through a petition for reinstatement in a police, district or municipal court, is not applicable and does not furnish adequate remedy to administrative officers appointed under Sections 37, 39 of the charter of the city of

Lowell, St. 1911, c. 645, upon an illegal attempt by the municipal council to remove them under Section 40 without complying with the civil service rules; and therefore such officers may maintain petitions for writs of mandamus ordering their reinstatement.

PETITIONS, filed in the Supreme Judicial Court, the first and second on January 17 and the third on January 19, 1917, against the mayor and four aldermen who, by St. 1911, C. 645, Section 1, constitute the municipal council of Lowell, in whom are vested the government of the city and the general management and control of all its affairs, seeking writs of mandamus directing a reinstatement of the petitioners in their respective offices of superintendent of waterworks, purchasing agent, and treasurer and collector of taxes.

The cases were heard together, upon the petitions and answers and upon an agreement of the counsel for the parties as to certain facts, by Pierce, J. The material facts are stated in the opinion. The single justice ordered the issuance in each case of a peremptory writ of mandamus reinstating the petitioner therein, and, at the request of the respondents, reported the cases for determination by the full court.

W. D. Regan, for the respondents.

S. E. Qua, (F.

W. Qua with him,) for the petitioners.

CROSBY, J. These are three petitions for writs of mandamus, brought against the mayor and all the other four members of the municipal council of the city of Lowell, for the purpose of securing the reinstatement of the petitioners in their respective offices as superintendent of waterworks, purchasing agent and treasurer and collector of taxes, of that city. The petitions were heard upon the pleadings and agreement of the parties by a single justice, who made certain rulings, ordered that a writ should issue in each case as prayed for, and reported the cases to this court.

By virtue of St 1911, c. 645, the charter of the city of Lowell was amended. As amended it is known as the "new charter," and provides for a commission form of municipal government. Section 37 provides for certain administrative officers therein described (among others a superintendent of waterworks, a purchasing agent and a treasurer and collector of taxes) and defines their duties; section 39 provides that the municipal council shall have power to elect the administrative officers named in Section 37 "and all other executive and administrative officers and boards and heads of sub-departments heretofore known or designated as heads of departments, now appointed or chosen by the mayor." Section 40 is as follows: "The municipal council shall have the power under the laws regulating the civil service to suspend or remove any executive or administrative officer or head of a sub-department it has the power to appoint, for such cause as it...