Concannon v. Comm'r of Pub. Safety
| Decision Date | 05 July 1949 |
| Parties | CONCANNON v. COMMISSIONER OF PUBLIC SAFETY (two cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; Baker, Judge.
Mandamus and certiorari proceedings by James L. Concannon against the Commissioner of Public Safety. The Judge made findings of fact and ordered the petitions dismissed, and James L. Concannon brings exceptions.
Exceptions overruled.
L. V. Concannon, Boston, for petitioner.
R. Clapp, Asst. Atty. Gen. for respondents.
Before QUA, C. J., and LUMMUS, RONAN, SPALDING and WILLIAMS, JJ.
On November 16, 1943, the petitioner, a patrolman in the division of State police of the department of public safety, see G.L.(Ter.Ed.) c. 22, § 9A, as amended, was dishonorably discharged after a hearing. Contending that the proceedings by which he was removed were not conducted in accordance with law, he brought this petition for a writ of mandamus against the respondent to compel the latter to recognize him as a member of the force depite his discharge. In an amendment to his petition the petitioner added an allegation that ‘the respondent and those in charge of the trial did not exercise good faith.’ The petitioner also sought a review of the removal proceedings by certiorari. The petitions were heard together. In each case the judge made findings of fact and ordered the petition dismissed. The cases come here on the petitioner's bills of exceptions.
General Laws (Ter.Ed.) c. 22, § 9A, provides that the commissioner of public safety ‘may, subject to the approval of the governor, make rules and regulations for * * * [the State police force] including matters pertaining to their discipline, organization and government.’ Section 9A also provides that ‘Any member of said force violating any of the rules or regulations for said force shall be subject to discipline or discharge in accordance with said rules and regulations.’ Pursuant to these provisions, rules and regulations for the government of the State police were drawn up by the commissioner of public safety and were approved by the Governor on May 3, 1922. Rule 21 provides that members of the force In Rule 23 it is provided that ‘The procedure in all trials before a trial court of the patrol shall conform to the Manual of Courts Martial of the United States Army, as published and in force on January 1, 1917.’ Rule 23 establishes two types of trial courts, summary and special. Summary courts 1
On August 18, 1943, charges were preferred against the petitioner alleging a violation by him of Rule 21(d) and (i) of the State police. In specifications filed with these charges the following with respect to the petitioner was alleged as having occurred in Worcester on August 6, 1943: his arrest for drunkenness, being drunk and disorderly, engaging in an altercation with a police officer, assaulting such officer, failing to report his absence from duty, and showing an utter disrespect for his superiors in the manner in which he reported his absence and his arrest. The petitioner, who was represented by counsel, was tried on these charges by a summary court consisting of a corporal, a sergeant, and a lieutenant of the State police, and was found guilty on all of them. The summary court recommended a dishonorable discharge and this recommendation was approved by the respondent.
The judge made comprehensive findings of fact. We shall refer to them only in so far as they bear upon the exceptions argued by the petitioner.
The petitioner argues that the judge erred in refusing to rule, as requested, that the manual of courts martial by which the trial was governed was not that which was prescribed by the rules and regulations. This point is without merit. We think that it cannot be seriously contended that the manual used was not the one referred to in the rule.2 In any event the judge was warranted in finding, as in effect he did, that the proper manual was used.
In several requests, which were denied subject to his exceptions, the petitioner asked the judge to rule in substance that the conduct of Captain Shimkus was such in connection with the case as to make him an accuser and that this disqualified him from acting as a reviewing officer. In support of this contention the petitioner invokes paragraph 121 of the manual for courts martial which provides that a member of a court martial It appears that Shimkus was not a member of the court which tried the petitioner, and the judge found that he was not the accuser. The judge, however, found that Shimkus was ‘the reviewing officer who approved the summary court's decisions and recommended to the respondent * * * the finding of guilt and a dishonorable discharge.’ We do no pause to consider whether Shimkus, by reason of what he did in connection with the earlier phases of the...
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O'Hara v. Commissioner of Public Safety
...adopted trial procedure conforming to the Manual of Courts Martial of the United States Army. See Concannon v. Commissioner of Pub. Safety, 324 Mass. 503, 504--505, 87 N.E.2d 216 (1949). Police in general must not be too hastily assimilated to the military for disciplinary purposes, but the......
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Manzi v. Provident Mut. Life Ins. Co.
...brief admits, does not show that these exceptions were in fact claimed. They have not been considered. Concannon v. Commissioner of Public Safety, 324 Mass. 503, 508, 87 N.E.2d 216, and cases cited. See Posell v. Herscovitz, 237 Mass. 513, 517, 130 N.E. 69; City of Quincy v. Wilson, 305 Mas......
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