Opinion
March 24, 1927.
July 1, 1927.
Present: RUGG, C.J., PIERCE, WAIT, SANDERSON, JJ.
Civil Service. Mandamus.
A notice in writing from the superintendent of streets in Fall River, received on Saturday by one, enrolled in the classified list of the public service of the Commonwealth and duly certified as a permanent employee as laborer in the street department, informing the laborer that on and after the following Monday until further notice the street department would operate on a part time basis and the laborer would work two days a week because of lack of work owing to the season of the year and such a depletion of the funds of the department that full time employment for all permanent employees was not permitted, is a sufficient notice under G.L.c. 31, § 43. If, after receiving a notice of the character above described, the laborer does not ask for a hearing and review under said § 43, he cannot maintain a petition for a writ of mandamus ordering his reinstatement even if the reasons stated in the notice were not true.
SIXTEEN PETITIONS, filed in the Supreme Judicial Court for the county of Bristol on January 18, 1927, for writs of mandamus described in the opinion.
The petitions were ordered consolidated, were then referred to an auditor, and were heard upon the pleadings and the auditor's report by Carroll, J., who ruled in substance that, it not appearing that the petitioners had pursued the remedy given them by G.L.c. 31, §§ 43, 45, the petitions must be dismissed. The petitioners alleged exceptions.
T.C. Crowther, for the petitioners.
C.W. Donovan, for the respondents.
These are sixteen petitions for mandamus for the reinstatement of the several petitioners in their respective employments in the street department of the city of Fall River. Each petitioner was enrolled in the classified list of the public service of the Commonwealth, and duly certified as a permanent employee as laborer in the street department. On or about December 18, 1926, each petitioner received a written notice from the superintendent of streets informing him that on and after Monday, December 20, 1926, until further notice, the street department would operate on a part time basis, that the petitioners would work two days a week. The reason given in the notice was lack of work owing to the season of the year and such a depletion of the funds of the department as not to permit full time employment for all permanent employees. "Instead of depriving some men of work and granting full time to others it has been decided to so subdivide the work that all might receive some employment." The petitioners did not ask for a hearing and review, as they might have done. G.L.c. 31, §§ 43, 45. Because they had failed to follow this statutory procedure, a single justice denied the petitions. Exception was taken to his finding, ruling and order.
The reasons for a suspension are required by the statute to be given within twenty-four hours after suspension, but it has been decided that such reasons may legally be given three days before the date of removal. Carey v. Casey, 245 Mass. 12. The notice to the petitioners in the case at bar therefore was properly given, and reasons were stated as required by the statute. As a result of this notice the petitioners were suspended within the meaning of that word as used in the statute. See Bois v. Mayor of Fall River, 257 Mass. 471, 476. The court said, in Peckham v. Mayor of Fall River, 253 Mass. 590, at page 593, "The appropriate procedure for trying out all questions involved in a removal or suspension of one entitled to the protection of the civil service law is that provided by the statute. G.L.c. 31, §§ 43, 44, 45. That procedure affords the exclusive remedy when it is available. . . . But when, by not receiving the required statement in writing of the reasons for removal or suspension, the employee cannot avail himself of the procedure then afforded, he may resort to remedy by mandamus." Upon the facts in the case at bar, the procedure provided for hearing and review furnished the petitioners with an adequate remedy; and as they did not avail themselves thereof, they are not entitled to a writ of mandamus. O'Brien v. Cadogan, 220 Mass. 578, 581. Carey v. Casey, supra. McLaughlin v. Mayor of Cambridge, 253 Mass. 193.
The facts found by the auditor to the effect that there was no lack of funds for doing the necessary work in the street department, that after December 20, 1926, the seniority clause of civil service rule 40 (§ 4) was not observed, and that for several weeks after that date teamsters were employed on full time, would not give the petitioners the right to substitute proceedings by way of mandamus for their statutory remedy. The reasons for the public hearing are to determine whether proper cause of suspension existed and whether the causes assigned are true. Cases in which a petition for mandamus has been granted after municipal officers have so violated the provisions of G.L.c. 31, as to make the statutory remedy unavailable to the employee, are distinguishable from the case at bar. Peckham v. Mayor of Fall River, supra. Harrison v. Fall River, 257 Mass. 545, 549.
Exceptions overruled.