Coolidge v. Bruce

Decision Date14 June 1924
Citation249 Mass. 465,144 N.E. 397
PartiesCOOLIDGE, Mayor, v. BRUCE, District Judge.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Case reserved from Superior Court, Middlesex County; John C. Crosby, Judge.

Petition for writ of certiorari by Richard B. Coolidge, Mayor of the City of Medford, against Charles M. Bruce, Judge of the First District Court of Eastern Middlesex. On reservation. Writ granted.

L. G. Brooks, of Boston, for petitioner.

F. P. Garland and F. D. Healy, both of Boston, for respondent.

RUGG, C. J.

This is a petition for a writ of certiorari brought by the mayor of Medford against the judge of the First district court of Eastern Middlesex.

[1][2] The usual function of a writ of certiorari is to enable a party without remedy by appeal, exception or other mode of correcting errors of law committed against his rights, to bring the true record of an inferior tribunal, whose proceedings are judicial or quasi judicial in nature, properly extended, so as to show the principles of the decision, before a superior court for examination as to material mistakes of law apparent on such record. Only errors of law can be reviewed. Findings of fact are not commonly open to revision. The case at bar is a proper one for certiorari. Driscoll v. Mayor of Somerville, 213 Mass. 493, 100 N. E. 640;Swan v. Three Justices of the Superior Court, 222 Mass. 542, 544, 111 N. E. 386;Commissioner of Public Works v. Justice of Dorchester District Court, 228 Mass. 12, 16, 116 N. E. 969;Westport v. County Commissioners, 246 Mass. 556, 141 N. E. 591;Rex v. Nat. Bell Liquors, Ltd., [1922] 2 A. C. 128, 153-156.

[3] The petitioner in the case at bar, acting as mayor, removed one Fitzpatrick as police officer of Medford. The police officer was within the classified service. There was compliance with all requirements of the statute as to notice and hearing. After his removal Fitzpatrick brought a petition in the district court of the judicial district where he resided, addressed to the respondent as judge of the court, praying that the action of the mayor in removing him be reviewed. This petition is brought against the respondent to correct the errors of law alleged to have been committed by him in the proceedings on that petition and to be apparent on the face of his return.

The return of the respondent shows that no oral testimony was presented at the hearing here attacked but that by agreement the case was submitted upon the charge made against Fitzpatrick, a stenographic report of the proceedings and evidence before the petitioner acting as mayor at the hearing held by him under G. L. c. 31, § 44, the decision rendered by him upon such hearing and the rules and regulations of the police department of Medford. The charges on which Fitzpatrick was removed were in groups numbered from 1 to 5. The petitioner acting as mayor found Fitzpatrick ‘Guilty of conduct unbecoming an officer on March 30, 1922, and on January 16, 1923,’ and ‘guilty of violating the rules of the police department on January 15, 1923.’ These findings followed substantially word for word ‘the reasons specifically given in writing’ to him under G. L. c. 31, § 44, as charge numbered 2 and the first of several dates in charge numbered 3. He was exonerated on the other charges. The conclusion of the findings of the petitioner acting as mayor was that the ‘order of removal was and hereby is made for just cause and for specific reasons duly given.’

The respondent in his review of the decision of the petitioner acting as mayor held that:

‘A charge made February 13, 1923, of conduct unbecoming an officer on March 30, 1922, is too remote to be entered as a charge, and no evidence supports January 16, 1923.’

[4] The first of these conclusions cannot rightly be regarded as anything other than a ruling of law. It was erroneous. No such period of limitation as less than 11 months bars conduct unbecoming a police officer from being considered as a reason for removing him. It is the character of the breach of duty which ought to have weight on the question of removal and not the period of time, within reasonable limits, after which the charge is made. A long delay in bringing forward a charge of that nature as a reason for removalmight be evidence of bad faith, although that here disclosed in the absence of circumstances giving color to the transaction would seem short even for that purpose. The finding of the respondent is explicit that the removal was not made in bad faith. This charge was not too remote in time as matter of law to be considered as a basis for removal.

[5][6] The second part of this conclusion of the respondent is that no evidence supports the charge of conduct unbecoming an officer on January 16, 1923. This is not clear. If it be treated as a ruling of law, it also was wrong. There was testimony of conduct on the part of the officer on that day, which, given full effect, might well have supported the finding made by the petitioner while acting as mayor. This evidence need not be stated in detail. The circumstances that this testimony related to a time when the officer was not in uniform and was not on duty is not decisive. His conduct while off duty and in civilian clothes might be of such nature as to show him unfit to continue to act as a police officer. Fitzpatrick did not testify at the hearing before the mayor and did not deny the testimony against him or explain his conduct as disclosed by that testimony. That was a circumstance entitled to weight against him. Attorney General v. Pelletier, 240 Mass. 264, 316, 134 N. E. 407, and cases there collected. If the testimony was believed, the incident therein described, without explanation, was as matter of law of a character to support the charge and the action of the petitioner acting as mayor. This conclusion of the respondent is susceptible also of the construction in connection with the whole record that the respondent regarded the evidence as not credible. While disbelief of evidence is within the power of a trial magistrate or tribunal when testimony is oral and the appearance and manner of the witness have much to do with the credibility (Commonwealth v. Russ, 232 Mass. 58, 70, 122 N. E. 176), it is doubtful whether that principle is applicable in a proceeding like the present to evidence presented in the form of a transcript of uncontradicted testimony believed by the removing officer who saw the witnesses. See Fountaine's Case, 247 Mass.-, 141 N. E. 594. This is not a retrial of the case as if it were unqualifiedly appealed from one court to another. In the words of G. L. c. 31, § 45, it is a ‘review’ of the action of the removing officer or board, and the judge is required to ‘affirm the decision of the officer or board, unless it shall appear that it was...

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