McAuliffe v. Mayor and Board of Aldermen

Mandamus — Constitutional Law — Police Regulations. A municipal regulation, which provides that no member of the police department shall be allowed to solicit money or any aid on any pretence for any political purpose whatever, is not unconstitutional as invading the rights of the members of the police force to express their political opinions; and a breach thereof by such a member is a good cause for removal within the St. of 1890, c. 819, § 1, by virtue of which members of the police force hold office “ during good behavior and until removal by the mayor . . . for cause deemed by him sufficient after due hearing.” A policeman received notice half an hour beforehand of a hearing before the mayor of a city upon a written complaint charging him with violating a regulation of the police department, and attended the hearing, but offered no evidence. At an adjourned hearing upon the same charges he was present with counsel, and demanded further specifications of the charges against him, which were refused. Before the filing of the complaint against him, his attention had been called to his violation of the regulation, and he had admitted his guilt to the mayor. Held, that due hearing had been given him. Since the passage of the St. of 1890, c. 319, relating to the tenure of office of policemen, the mayor of any city in which the act is in force has the power to hear all cases on the removal of a police officer in the first instance himself.

Petition for a writ of mandamus to restore the petitioner to the office of policeman in the city of New Bedford. Hearing before Allen, J., who reported the case for the consideration of the full court in substance as follows. The petitioner, who was removed on February 3, 1891, from the police force of that city by the mayor, claimed to hold the office of policeman during good behavior, subject to removal by the mayor for cause deemed by him sufficient, after due hearing, according to the tenure of office of policemen fixed by the St. of 1890, c. 319, a statute which had been duly accepted by the voters of that city. On January 21, 1891, a written complaint was filed with the chief of police, setting forth that the petitioner had violated Rule 31 of the police regulations of the city in that he had engaged in political canvassing at two elections of the previous year, and had solicited votes, aid, and assistance from divers voters of New Bedford in the interests of certain political parties and candidates for political office; and on the same day the chief of police transmitted the complaint to the mayor, in accordance with Rule 24 of the police regulations.* The mayor appointed, a time for a hearing, at which evidence was offered in behalf of the complainant, but at which the petitioner offered no evidence, although he was present, having received a notice thereof half an hour before the hearing. The petitioner also appeared with counsel at an adjourned hearing before the mayor, and demanded specifications of the charges upon which he was to be tried, which the mayor declined to furnish. The petitioner then declined to proceed before the mayor, and the mayor declared the hearing closed, and removed the petitioner from office, stating, in his letter to the chief of police notifying him of the petitioner’s removal, that he found him guilty of violating Rule 31 of the police regulations. The petitioner denied the authority of the mayor to remove him. It was agreed that the judge was not called upon to review the findings of fact by the mayor, and the petitioner denied the charges brought against him. On cross-examination the mayor stated that he could not recall just what specific acts he found that the petitioner had committed which he deemed soliciting aid within the meaning of Rule 31; that he did not find that the petitioner had solicited money or any material aid, excepting that he talked politics; and he would not state that he found that the petitioner had talked politics while he was on duty. It was in evidence that the mayor, after his election and before his inauguration, declared, in speaking about this case, that “ he did not care about the evidence; he knew what McAuliffe had been doing; he knew all about it.’’ This evidence was called to the attention of the mayor at the hearing, and he said he would not deny it, but could not recall the conversation. The respondents offered evidence that at the hearing before the mayor testimony was introduced tending to show that the petitioner was at the headquarters of one of the political parties in the Sunday evening preceding the municipal election, in conference with its executive committee; that he had been engaged in political work and had been cautioned as to the consequences; that he had attended a conference as a member of a political committee; and that the petitioner told one Cooper that he had been working to get votes for a political party, and that the petitioner said to the mayor, “I admit I am guilty; what’s the penalty?" and also said to the mayor, at another interview, that, “ if he was going to be removed, he would like to know it so he could resign.’’ There was no other material evidence in the case. The petitioner asked the judge to rule: “ 1. That the petitioner held his office under chapter 319 of the Acts of 1890, and that he could be removed only for an act of bad behavior. “ 2. That the hearing should have been before the committee on police, that the petitioner did not receive due hearing, and that the notice of the hearing and the complaint was irregular and insufficient in law. “ 3. That it was a question of law for the court to determine whether the acts found by the mayor to have been committed by the petitioner amounted to bad behavior or to soliciting aid within the meaning of Rule 31, and that the act so found did not constitute bad behavior and was not in violation of the rule.” The judge found that there was a sufficient complaint or charge against the petitioner, and that he knew what he was charged with, and had an opportunity to meet it, and that in the hearing he was deprived of no legal right, and that the finding of the mayor was sufficient to warrant the removal of the petitioner, and ordered the petition to be dismissed. The petitioner appealed, and the judge reported the case for the consideration of the full court.