Whalen v. City Forester of Waltham

• Decision Date: 24 May 1932
• Citation: 181 N.E. 246,279 Mass. 287
• Parties: WHALEN et al. v. CITY FORESTER OF WALTHAM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

279 Mass. 287

181 N.E. 246

WHALEN et al.

v.CITY FORESTER OF WALTHAM.

Supreme Judicial Court of Massachusetts, Middlesex.

May 24, 1932.

Exceptions from Supreme Judicial Court, Middlesex County.

Petitions by John P. Whalen and others for writ of mandamus to be directed to the City Forester of Waltham. From order dismissing petition, petitioners bring exceptions.

Exceptions overruled.J. J. Flynn and J. I. Rooney, both of Waltham, for petitioners.

P. J. Duane and J. J. Foster, both of Waltham, for respondents.

SANDERSON, J.

These are four petitions for reinstatement by employees in the forestry department of the city of Waltham, who received notices on February 25, 1931, signed by the city forester, that they would be laid off on the twenty-eighth day of February, 1931, owing to a reduction in the appropriation for that department for the year 1931. The respondents are respectively the city forester and the mayor of Waltham. Upon receiving the notices they all wrote the city forester asking for a public hearing and made similar requests of the mayor. The city forester notified Whalen that the matter had been referred to the mayor, who gave notice to each petitioner of the time when he might have a hearingat the mayor's office. All of the petitioners were present on the date set. Whalen was represented by counsel, and ‘by agreement the hearing was postponed * * * and was held before the Mayor’ at a later date. The petitioners other than Whalen took no active part in the hearing, apparently being willing to rest their cases on that made out by him. None of them made any claim that this hearing did not conform to law or civil service regulations. On March 14, 1931, the mayor sent to each petitioner a letter in the following terms: ‘At the hearing held at City Hall, Waltham, on March 11 and 12 current, when the status of several persons connected with our Forestry Department, one of whom you were, was being considered please be advised that no charges have been preferred against you, nor were any statedor heard, directly or indirectly. You were not removed from the Forestry Department, nor were you suspended. If it appears in the immediate or remote future that it is necessary to put men to work on work similar to that which you have been accustomed to do in the Forestry Department, it is my purpose to put such persons to work as under the civil service rules are entitled to the same. Very truly yours, Patrick J. Duane.’

On March 30 the petitioner Whalen filed in the district court a petition for review. After notice to him, a special judge of that court gave a hearing on the petition, and rendered a decision in part in the following terms: ‘The action against the petitioner was taken for economic reasons only and it was admitted that there was no fault to be found whatsoever with his character or with his work. I, therefore, find under the provisions of the General Laws, c. 31, § 45, that the suspension of the petitioner was not made without proper cause or in bad faith and hereby affirm such action.’ The petitioners Quinn and Ferrick each filed a petition for review in the same court, but each of them on August 24, 1931, before any hearing thereon, filed in that court a discontinuance of his petition. The petitioner Qualters never filed a petition for review.

The work done by the forestry department had been carried on for several years by ten to twelve men, with additional men from time to time. On March 1, 1931, two men, and at the time of the hearings six, were employed in the department. The petitioners were all regular men. In former years employees in the forestry department had at times been engaged in trimming underbrush in two parks when they were not in control of that department. All work thus done in these parks was performed at the request of the park commission. In the winter of 1930 and 1931 a citizens' committee, as a measure of relief to the unemployed, arranged with the park commission to let out the cutting of underbrush and other work on the areas of these two parks and the men so employed were designated by the committee as needy persons. Thus much work formerly done in winter months by men in the forestry department was performed by others in accordance with this agreement. Work such as the petitioners had done in previous years, however, still remained to be done in one of these parks.

For the fiscal year beginning February 1, 1930, the total appropriation for labor in the forestry department was in excess of $40,000. The respondent Ryan estimated the requirements of his department for labor for the fiscal year beginning February 1, 1931, at $18,000 for the regular employees and a few extra men as they might be needed. The mayor, however, recommended to the city council only $2,500, and that sum was appropriated as an item in the budget, and later an additional appropriation of $5,000 was recommended by the mayor, and made. The auditor found that the mayor had in mind, in recommending this reduced appropriation, a large abatement of taxes in the city, loss of taxable property, the probability that county taxes would be increased and income and corporation taxes would...