Williams v. City of Gloucester

19 N.E. 348, 148 Mass. 256, 1889 Mass. LEXIS 251

• Court: Massachusetts Supreme Judicial Court
• Decided: January 3, 1889
• Status: Published

Opinion

Morton, C. J.

The question presented by this bill of exceptions is, whether the plaintiff, who was a police officer of the city of Gloucester, was legally removed from his office on February 1, 1887.

The charter of the city provides that “ the mayor and aider-men shall have full and exclusive power to appoint a constable or constables, and a city marshal and assistants, with the powers and duties of constables, and all police officers, and the same to remove at pleasure.” St. 1873, c. 246, § 11. It also provides that the mayor, whenever in his opinion the public good so requires, may “ remove, with the consent of the appointing power, any officer over whose appointment he has, in accordance with the provisions of this charter, exercised the power of nomination.” St. 1873, c. 246, § 9. The plaintiff contends that the mayor, with the consent of the aldermen, can only remove officers who are appointed by him personally, and not those appointed by his predecessor. But this claim cannot be sustained. The two clauses were intended to be harmonious, and the one last cited means that the appointing power may remove any officer who has been appointed upon the nomination of any mayor. At any rate, it cannot be construed to cut down the power distinctly conferred by § 11, “ to remove at pleasure ” the officers named therein.

The plaintiff also contends that the mayor and aldermen cannot remove a police officer except for cause and after a hearing. But this is inconsistent with the broad and general power conferred by the charter “ to remove at pleasure ” such officers. Knowles v. Boston, 12 Gray, 339. The provision of the ordinances of the city, chapter 16, section 39, as to hearing complaints against police officers, was intended to provide for minor irregularities, not sufficient to call for his removal from the force,” and not to limit the power conferred by the charter; if it attempted to do this, it would be repugnant to the statute, and therefore void. Commonwealth v. Allen, 128 Mass. 308. The plaintiff further contends that the officer alleged to be appointed in his place was not legally appointed, because the tenth section 'of article 2 of the joint rules and orders of the city council provides that “ all officers whose salary is payable from the city treasury shall be elected by written or printed ballots.” This was plainly intended to apply to elective officers to be chosen by the council under the charter, and not to subordinate officers, like police officers, who are appointed and whose compensation is fixed by the mayor and aldermen.

The only remaining question is, whether the record of the mayor and aldermen shows that the plaintiff was removed. The record states that, at a meeting held on February 1, 1887, " His Honor then removed from the police force Martin J. Williams. The board non-concurred in the removal by the following yea and nay vote: Yeas, Aldermen Cook, Watson, Curtis, Piper. Nays, Aldermen Gaffney, Shepherd, Dennen, Homans. . . . His Honor then nominated John Karcher in place of Martin J. Williams, and called for his confirmation by a viva voce vote, and John Karcher was declared confirmed as a police officer in place of Martin J. Williams.” The next day a notice of his removal was served upon the plaintiff. This record shows that Karcher was duly appointed police officer in place of the plaintiff. It is the duty of the presiding officer to ascertain and declare the result of a vote unless the meeting directs some other mode; and when his declaration is assented to, and accepted by the meeting, and recorded, the record is evidence that the vote was duly passed. Putnam v. Langley, 133 Mass. 204.

The case before us differs entirely from the case of Commonwealth v. Allen, 128 Mass. 308, cited by the plaintiff. In that case, the mayor, having nominated the chief of police, put the question in this form: “Shall the nomination be rejected?” There was a tie vote, and the mayor declared that the nomination was not rejected, and announced that the defendant was appointed chief of police. The court held that the record showed that the defendant was not confirmed by a majority of the aldermen, and therefore was not duly appointed.

We are of opinion that the effect of the vote appointing Karcher was to work the removal of the plaintiff. The vote imports that he was appointed “ in place of ” the plaintiff. By necessary implication, it operates to remove the plaintiff; otherwise, the vote is nugatory. The fact that the aldermen.had previously non-concurred in his removal was not material. The subject was under their control, and they could act upon it in such mode as they saw fit, at the same or any subsequent meeting. No law exists which required them in form to reconsider their former vote. The later vote upon the same subject is repugnant to, and rescinds, the prior vote. Upon the whole case, we are of opinion that the plaintiff was lawfully removed, and therefore that he cannot recover in this action.

Exceptions overruled.