Duggan v. Justice of Third Dist. Ct. of Eastern Middlesex

• Decision Date: 17 September 1937
• Citation: 298 Mass. 274,10 N.E.2d 61
• Parties: FRANCIS L. DUGGAN v. THIRD DISTRICT COURT OF EASTERN MIDDLESEX.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

298 Mass. 274

10 N.E.2d 61

FRANCIS L. DUGGAN v. THIRD DISTRICT COURT OF EASTERN MIDDLESEX.

Supreme Judicial Court of Massachusetts, Middlesex.

September 17, 1937

May 11, 1937.

Present: RUGG, C.

J., CROSBY, PIERCE & QUA, JJ.

Civil Service. Municipal Corporations, Officers and agents. Police. Cambridge.

The officer of a police department having the power to remove policemen, after hearing under G.L. (Ter. Ed.) c. 31, Section 42A, and sustaining charges against a policeman who had been suspended pending the hearing, had authority to remove the policeman as of a date subsequent to the offences found to have been committed and to the date of suspension but before the date of the hearing. An ordinance of the city of Cambridge adopted under Section 5 of G.L. (Ter.

Ed.) c. 43, when the city was under a Plan B form of charter, abolishing its department of public safety and establishing a police department in charge of a chief of police, constituted him the officer having authority to remove a policeman under G.L (Ter. Ed.) c. 31, Section 42A.

PETITION for a writ of certiorari, filed in the Supreme Judicial Court for the county of Middlesex on February 11, 1937.

The petition was heard by Donahue, J., who ordered it dismissed and reported the case for determination by the full court.

J. W. Lyons, (J.

A. DeGuglielmo with him,) for the petitioner.

R. Clapp, Assistant Attorney General, for the respondent.

PIERCE, J. This is a petition praying that a writ of certiorari issue requiring the respondent to certify the "records of his doings relating to or touching" a certain matter (stated in the petition) in his court, to the end that the "ruling of said court may be reversed, and its . . . order dismissing said proceedings may be quashed"; and for such other relief as law and justice may require. The petition for the writ was heard by a single justice of this court. Annexed to it was a copy of all the proceedings of the respondent, and it was "stipulated that the petition for the writ of certiorari contains the full, extended and accurate record of the entire proceedings and actions of the respondent in the above entitled matter and that the same may be used and treated by the court as if such record had been actually returned by the respondent herein. The respondent adopts such record as the record which he himself would have made to the court on a return signed by him." The single justice ordered the petition dismissed, as matter of law, and reported the case upon the petition, answer and stipulation for the determination of the full court.

It appears from a "Petition for Judicial Review" addressed to the "Honorable the Justice of the Third District Court of Eastern Middlesex," that the petitioner, Francis L Duggan, on February 28, 1928, was duly appointed a member of the police force of the city of Cambridge. It further appears from the said petition and the reported proceedings thereon, that on September 13, 1936, said Duggan was a member of the police department in good standing; that on said day he received a notice from the chief of police, Timothy F. Leahy, to the effect that he was "temporarily suspended" from the police department "pending charges to be preferred" against him; that on September 13, 1936, he received a communication from the said chief of police, in substance, that he contemplated removing Duggan from the police department for the reasons, (1) "Violation of the rules and regulations for the government of the Cambridge Police Department. To Wit: Neglect of duty and conduct unbecoming a police officer"; (2) "That you failed to pull your 5:45; 6:15; 6:45 and 7:15 A.M., duty calls on the morning of September 13, 1936, and did not give any excuse"; (3) "That you failed to report off duty at 8:00 A.M., on the morning of September 13, 1936"; and (4) "That you were under the influence of intoxicating liquor on the morning of September 13, 1936, while on duty and in uniform." This communication of the chief of police further read: "I will grant you a hearing on the aforesaid matters and the contemplated removal at my office on September 19, 1936, at 10:00 A.M., at which time and place I will hear the evidence in the above case. You will bring any witnesses or other evidence that you may have." After various continuances a hearing was had on October 15, 1936, at the office of the chief of police, who presided. On October 16, 1936, the said Timothy F. Leahy notified the petitioner that he was found guilty of all charges and ordered his dismissal from the police department, the order to take effect "on and after 5:30 P.M., roll call on Friday, September 16, 1936."

During the interval between September 13, 1936, and October 16, 1936, inclusive, the city of Cambridge had a mayor who took no part in these proceedings shown by the record.

On December 2, 1936, the "Petition for Judicial Review," filed in the Third District Court of Eastern Middlesex on October 21, 1936, after appropriate pleadings came on to be heard before the respondent, Arthur P. Stone, Esquire, as justice of said court. At the trial there arose one question of fact and two legal issues. The question of fact, as stated in the petitioner's brief, was whether the petitioner "was under the influence of intoxicating liquors" on the morning of September 13, 1936, or whether he "was suffering from traumatic epilepsy, which was the result of injuries incurred by the petitioner in the course of his duties as a police officer." On this issue of fact the respondent found that the petitioner from 5:13 until 9:10 on the morning of September 13, 1936, was "under the influence of liquor but was also suffering from the beginnings of an attack of epilepsy which afterwards increased in severity." The petitioner concedes that "this question of fact is not a proper subject for argument on this appeal."

This leaves for consideration two issues of law which go to the essence of the respondent's decision and order.

The first issue is, Had the chief of police after a full hearing, which terminated October 15, 1936, authority to remove the petitioner as of September 16, 1936? In this regard the contention of the petitioner is that the order, "to take effect . . . September 16, 1936," was in legal effect a removal before the hearing to which the petitioner was entitled under G.L. (Ter. Ed.) c. 31, Section 42A. This position is unsound. The petitioner was suspended on September 13, 1936, pending charges to be preferred against him. A hearing was had on the charges against him on October 15, 1936. No order was made until after its conclusion. The dismissal was then made, to be effective at a date prior to the hearing, but at a date subsequent to the acts of which the petitioner was found guilty. Why the removal was not made as of September 13, 1936, when the petitioner was temporarily suspended pending charges to be preferred, rather than as of "September 16, 1936," is not disclosed by the record. We think the chief of police acting in a quasi judicial capacity had authority under the circumstances disclosed to direct his order to be effective as of a prior date, which was subsequent to the suspension.

The second question of law is raised by the petitioner's contention that the chief of police had no power to appoint police officers, and that therefore he had no power to remove officers under the provisions of G.L. (Ter. Ed.) c. 31, Section 42A. The petitioner directs attention to the provisions of G.L. (Ter Ed.) c. 39, Section 1, which read: "Except as otherwise provided by law, city councils shall have the powers of towns; boards of aldermen shall have the powers, perform the duties and be subject to the liabilities of selectmen, except with respect to appointments, and the mayor shall have the powers, perform the duties and be subject to the liabilities of selectmen with respect to appointments, but all his appointments shall be subject to confirmation and rejection by the aldermen, and upon the rejection of a person so appointed the mayor shall within one month thereafter make another appointment. In cities having a single legislative board other than a board of aldermen, such board shall, so far as appropriate and not inconsistent with the express provisions of any general or special law, have the powers, perform the duties and be subject to the liabilities of the board of aldermen"; of c. 40, Section 1, which read: "Cities and towns shall be bodies corporate, and, except as otherwise expressly provided, shall have the powers, exercise the privileges and be subject to the duties and liabilities provided in the several acts establishing them and in the acts relating thereto. Except as otherwise expressly...