City of Revere v. Special Judge of Dist. Court of Chelsea

• Decision Date: 01 March 1928
• Parties: CITY OF REVERE v. SPECIAL JUDGE OF DISTRICT COURT OF CHELSEA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

262 Mass. 393

160 N.E. 431

CITY OF REVERE

v.SPECIAL JUDGE OF DISTRICT COURT OF CHELSEA.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1928.

Report from Supreme Judicial Court, Suffolk County; H. K. Braley, Judge.

Petition for certiorari by the Mayor of the City of Revere against the Special Judge of the District Court of Chelsea to quash the record of the District Court made on petition to review action of petitioner in removing a police lieutenant under the Civil Service Law. Petition dismissed, and case reported. Writ of certiorari to issue.John A. Di Pesa, of Boston (A. D. Diamond and P. Mondello, both of Boston, of counsel), for petitioner.

J. P. Feeney and T. H. Mahony, both of Boston, for respondent.

RUGG, C. J.

This is a petition for a writ of certiorari to quash the record of the district court of Chelsea made upon a petition to review the action of the mayor of Revere in making a removal under the civil service law. The petitioner, as mayor, after a hearing and upon written charges, removed a lieutenant of police from the police force of Revere. The final hearing before the mayor was held on August 13, 1925, and on the following day the mayor notified the lieutenant that he had been found guilty on specified charges and discharged from the police force to take effect on that day. These proceedings were in accordance with section 42A, inserted in G. L. c. 31, by St. 1923, c. 242, § 1. On August 22, 1925, the lieutenant filed a petition in the district court of Chelsea seeking a review of the decision of the mayor. No order of notice on this petition was applied for or issued until May 14, 1926. The order of notice then issued was served on the mayor three days later.

Prior to the introduction of any evidence in the district court on the petition for review, the mayor filed a written motion to dismiss that petition on the ground that the court was without jurisdiction. The reason stated in argument in the district court in support of that motion was in effect that, by reason of delay in taking out and serving the order of notice on the petition, there had been no compliance with the essential terms of the governing statute. The cause for this delay in procuring and serving notice on the petition, as stated by counsel for the lieutenant in argument on the motion to dismiss, was that, on August 16, 1925, the lieutenant was indicted for offenses specified in the charges of the mayor; that the trial upon that indictment was concluded by an acquittal on April 16, 1926; that while the indictment was pending ‘no court would have granted a hearing on that petition’ for review and ‘no reinstatement would have been made under those circumstances;’ and that, within a reasonable time after the verdict of acquittal on the indictment, the petition for review was brought forward. The facts above stated appear to have been accepted as true. The motion to dismiss was denied.

The material words of the controlling statute are these, found in section 42B, added to G. L. c. 31 by St. 1923, c. 242, § 1:

‘Within thirty days after a hearing provided for by the preceding section, the police officer who was removed, * * * may bring a petition in the district court * * * praying that the action of the officer * * * in removing * * * him * * * may be reviewed by the court, and after such notice to such officer * * * as the court deems necessary, it shall review such action, hear any or all of the witnesses and determine whether or not upon all the evidence such action was justified.’

The question is whether the discharged lieutenant of police complied with this statutory requirement by filing such petition well within the thirty days prescribed and by not taking out or asking for an order of notice thereon until more than eight months later.

The general rule is that a proceeding is not ‘brought,’ at least so far as concerns the defendant, until process has been issued from the appropriate court in good faith intending or making an effort to serve it. That this is the rule in equity was established upon great consideration and after review of numerous authorities in International Paper Co. v. Commonwealth, 232 Mass. 7, 121 N. E. 510. In Society for Propagating the Gospel v. Whitcomb, 2 N. H. 227, 228, 229, the question for decision was the correct interpretation of a statute to the effect that ‘no action of review shall be brought after the expiration of’ three years from a designated event. It there was said:

‘The word ‘brought,’ means the procurement of it [the writ] with a view to service upon the opposite party. * * * So the word, ‘brought,’ means obtained or gotten; and signifies the same as sued out.'

In Blain v. Blain, 45 Vt. 538, at page 543 it was said by Redfield, J.:

‘We are not aware that the making of a writ or petition, without summons or citation, and signed by no magistrate or judicial authority, has ever been held the commencement of the suit, or the ‘bringing of the petition or bill.’' Waxahachie v. Coler (C. C. A.) 92 F. 284, 286;Seaver v. Lincoln, 21 Pick. 267.

[3] It was not the design of said section 42B that the mere filing of the petition for review should be enough to bring the defendant into court because there is an express requirement for the service of such notice as the court deems necessary. There are cited in the brief for the respondent numerous statutes, mostly relating to matters already pending in court, where provision is made for appeal or review without requirement for notice. These have no pertinency to the question here presented. Regulation of appeals and reviews is within the power of the General Court. Because it has seen fit not to require notice in some instances, manifestly is no ground for judicial nullification of an express legislative requirement for such notice in other instances, we can only interpret and apply the words of the governing statute. It is significant that the statutory requirement is that the person removed must ‘bring’ and not merely ‘file’ a petition within the specified time. these two are words of...