Costa v. Justices of District Court of Eastern Essex

• Citation: 305 Mass. 85,25 N.E.2d 172
• Parties: ANTHONY S. COSTA v. DISTRICT COURT OF EASTERN ESSEX.
• Decision Date: 30 January 1940
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

305 Mass. 85

25 N.E.2d 172

ANTHONY S. COSTA v. DISTRICT COURT OF EASTERN ESSEX.

Supreme Judicial Court of Massachusetts, Essex.

January 30, 1940

October 4, 1939.

Present: FIELD, C.

J., LUMMUS, QUA DOLAN, & COX, JJ.

District Court Review of action with respect to civil service. Civil Service. Police Officer. Although a judge of a District Court, in hearing a petition under G.L. (Ter.

Ed.) c. 31, Section 42B, for a review of a decision by a council of a city other than Boston sustaining a charge that the petitioner, a police officer, had been absent without leave and suspending him went beyond the duties imposed by the statute and made independent findings of fact, no error was shown since his findings were warranted by the evidence and indicated his opinion that findings at least as strongly adverse to the petitioner properly could have been made by the council in support of its conclusion.

Suspension of a patrolman was justified in the circumstances by his absence from his beat because of illness without his making any effort to communicate with his superior officers.

The imposing upon a police officer of a city of a penalty of "punishment duty," even though it involved extra hours of work without additional compensation, was not a lowering in compensation subject to review under

Section 42B of G.L (Ter. Ed.) c. 31.

PETITION, filed in the Supreme Judicial Court for the county of Essex on August 13, 1938, for a writ of certiorari. After a hearing by Ronan, J., the petition was ordered dismissed. The petitioner alleged exceptions.

J. M. Marshall, for the petitioner.

P. A. Dever, Attorney General, & R.

Clapp, Assistant Attorney General, for the respondent, submitted a brief.

QUA, J. This petition is brought to quash a decision of a judge of a District Court made under G.L. (Ter. Ed.) c. 31, Section 42B affirming, in part, action of the municipal council of Gloucester on February 12, 1938, by which a charge by the city marshal that the petitioner, a police officer in the classified service, had been "absent without leave" was sustained, and he was ordered "restored to duty. . . effective Monday, February 14, 1938," and to "do punishment duty of one hundred twelve hours" under the direction of the city marshal. The city marshal had temporarily suspended the petitioner for the same offence under the authority of a city ordinance, and the petitioner had requested and had been accorded a hearing before the municipal council under Section 42A.

Under Section 42B it is the duty of the judge of the District Court to "review" the action of an officer or board by which a police officer in the classified service has been "removed, suspended, transferred, or lowered in rank or compensation," or by which his office has been abolished, and to "determine whether or not upon all the evidence such action was justified." The judicial review provided by G.L. (Ter. Ed.) c. 31, Section 42B, in behalf of police officers in the classified service differs in important particulars from the review provided by Section 45 as amended, of the same chapter, in behalf of officers and employees in the classified service generally. The former is broader than the latter. Under Section 42B the question before the judge is not whether he himself would have taken the same action as that taken by the officer or board, if the matter had come before him in the first instance. The issue "is not to be tried anew as if it were an appeal." The question before the judge is whether the action was taken "upon adequate reasons sufficiently supported by credible evidence, when weighed by an unprejudiced mind, guided by common sense and by correct rules of law." Selectmen of Wakefield v. Judge of First District Court of Eastern Middlesex, 262 Mass. 477 , 482. Mayor of Lynn v. Judge of the District Court of Southern Essex, 263 Mass. 596 . Whitney v. Judge of the District Court of Northern Berkshire, 271 Mass. 448 , 459. The section itself provides that the judge shall "hear any or all of the witnesses." In this case he heard all of the witnesses called by the parties who had testified before the municipal council. In deciding whether the action of the officer or board was "sufficiently supported by credible evidence," the judge is to "determine for himself, by the use of his judicial faculties, who were trustworthy and credible and who were not" (262 Mass., at page 483), in order that he may decide what evidence could have been believed "when weighed by...