Commissioner of Institutions of City of Boston v. Justices of Municipal Court of Roxbury Dist.

• Decision Date: 30 April 1935
• Citation: 195 N.E. 783,290 Mass. 460
• Parties: COMMISSIONER OF INSTITUTIONS OF CITY OF BOSTON v. JUSTICES OF MUNICIPAL COURT OF ROXBURY DIST.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

290 Mass. 460

195 N.E. 783

COMMISSIONER OF INSTITUTIONS OF CITY OF BOSTON v. JUSTICES OF MUNICIPAL COURT OF ROXBURY DIST.

Supreme Judicial Court of Massachusetts, Suffolk.

April 30, 1935

Exceptions from Supreme Judicial Court, Suffolk County.

Petition for a writ of certiorari by Frederic A. Washburn, as Commissioner of Institutions of the City of Boston, against the justices of the Municipal Court of Roxbury District, to quash a finding entered on a petition brought in the Municipal Court by Oscar C. Martin for review of the action of James E. Maguire, former Commissioner of Institutions of the City of Boston, in removing petitioner. To review an order dismissing the petition, the Commissioner brings exceptions.

Exceptions overruled.

H. Pakulski, Asst. Corp. Counsel, of Boston, for petitioner.

F. H. Stevens and J. T. Fahey, both of Boston, for respondent.

QUA Justice.

This is a petition for writ of certiorari prosecuted by Frederic A. Washburn as the present commissioner of institutions of the city of Boston to quash a finding of a judge of the municipal court of the Roxbury district entered on a petition brought in that court by Oscar C. Martin for review under G. L. (Ter. Ed.) c. 31, § 45, of the action of James E. Maguire, who, on December 14, 1933, as the then commissioner of institutions of the city of Boston, had purported to remove Martin from his position as engineer on the steamer ‘ Stephen J. O'Meara.’ The single justice of this court ordered the petition for the writ of certiorari to be dismissed.

From the return of the judge of the municipal court it appears that after notice to Maguire there was a hearing at which Maguire was represented by counsel from the legal department of the city and that on March 14, 1934, the judge filed a finding that Martin's discharge was made without proper cause and ordered that the commissioner's decision be reversed and that Martin be reinstated. Thereafter, on March 19, Maguire filed in the municipal court a paper entitled ‘ Plea in Abatement and Motion to Dismiss,’ wherein he stated that the court had no jurisdiction ‘ because the defendant at the time of the hearing upon the merits thereof was not the Commissioner of Institutions of the City of Boston’ and was therefore unable to comply with any order which might be made. The judge ‘ Denied’ this plea and motion.

There was no error of law in the denial of the plea and motion. The present petitioner asserts in his petition filed in this court that Maguire ceased to be commissioner of institutions on January 29, 1934. This was after the notice to him and before the hearing in the municipal court. But there is nothing in the return which shows that the judge of the municipal court found this was the fact, and we are bound by the return as to all matters of fact. Westport v. County Commissioners, 246 Mass. 556, 562, 141 N.E. 591; Selectmen of Wakefield v. Judge of the District Court, 262 Mass. 477, 480, 160 N.E. 427. Furthermore the return does show that the paper called a plea and motion was not filed until five days after the decision of the court, which decision the statute says ‘ shall be final and conclusive upon the parties.’ It was then too late in any event for the court to take further action on pleas or motions in that proceeding. Davis v. National Life Ins. Co., 187 Mass. 468, 73 N.E. 658. We cannot decide on this petition for a writ of certiorari what effect, if any, the coming into office of a new incumbent in place of the officer who had made the removal would have upon a pending petition for reinstatement under this statute. On the petition now before us we can deal only with errors of law apparent on the record of the proceeding in the Municipal Court. Swan v. Justices of the Superior Court, 222 Mass. 542, 546, 111 N.E. 386. There was no error of law in denying abatement or dismissal of a proceeding which had already...