Farrell v. Mayor of City of Revere

• Decision Date: 03 June 1940
• Citation: 27 N.E.2d 724,306 Mass. 221
• Parties: JOSEPHINE M. FARRELL v. MAYOR OF REVERE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

306 Mass. 221

27 N.E.2d 724

JOSEPHINE M. FARRELL v. MAYOR OF REVERE.

Supreme Judicial Court of Massachusetts, Suffolk.

June 3, 1940

March 7, 1940.

Present: FIELD, C.

J., DONAHUE, QUA & DOLAN, JJ.

Certiorari. Municipal Corporations, Officers and agents.

Revere. Practice Civil, Parties.

Certiorari against the mayor of the city of Revere was a permissible procedure by which to try the validity of his removal of the petitioner as city auditor.

Proceeding with a hearing, requested under 31 of St. 1914, c. 687, by one suspended by the mayor from the office of auditor of the city of Revere, when only the mayor and two of nine members of the city council were present, a majority being required for a quorum, was error requiring the quashing of a removal following the hearing.

Only the tribunal whose action is to be examined is a proper party respondent to a petition for a writ of certiorari to quash its removal of the petitioner from office; one appointed to succeed the petitioner should not be joined.

PETITION, filed in the Supreme Judicial Court for the county of Suffolk on July 28, 1939, for a writ of certiorari.

The case was heard by Ronan, J., who ruled that the hearing described in the opinion was a nullity and ordered the purported removal of the petitioner from office quashed. The respondent alleged exceptions.

G. R. Farnum, (R.

N. Bail with him,) for the respondent.

F. H. Farrell, for the petitioner.

QUA, J. The purpose of this petition is to review the action of the mayor on June 1, 1939, purporting to remove the petitioner from the office of auditor of the city under the authority of Section 31 of the city charter (St. 1914, c. 687).

Section 31 reads as follows: "The mayor may, in writing, suspend any executive or appointive officer or any public work, and in such case he shall at once report his action and his reasons therefor to the council. The suspension of any such officer shall, in fifteen days after such report is made, be a removal, unless within that time he asks for a hearing before the mayor and the council, which shall forthwith be granted and be public; and upon the conclusion of such hearing, if the mayor shall determine that the suspension be not sustained, the officer shall at once be reinstated. Public work suspended by the mayor may be carried on at his discretion until action is taken by the council. If the council within fifteen days after receiving a report shall determine by a vote of two thirds of its members that the mayor's action suspending the work be not sustained, the work shall be prosecuted forthwith."

It appears from the respondent's return that on April 27 the respondent suspended the petitioner for reasons stated by him and at once reported his action and his reasons therefor to the council; that upon a seasonable request by the petitioner for a public hearing before the mayor and the council, the respondent on May 12 notified the petitioner that such hearing would be granted on May 16 at 2 P.M.; that on the same day he notified the members of the council individually that the hearing would be held at his office at the time stated and directed them to appear "as provided by Section 31 of the Revere City Charter"; that the hearing was held at the time and place assigned before the respondent and two members of the council who attended; that the petitioner was present and requested that the hearing be "dismissed as not in accordance with the provisions of the city charter in that it was not a hearing before the mayor and the city council"; that this objection was overruled, and that the hearing proceeded. It further appears that after the removal of the petitioner one Burke was "duly appointed" auditor to fill the vacancy.

It will be unnecessary to consider separately either the respondent's exceptions to the overruling of the demurrer or those arising out of the final hearing before the single justice. The respondent presses only three contentions which are decisive of the whole case. We will deal with these in turn.

1. We see no good reason why a petition for a writ of certiorari is not a permissible procedure in a case of this kind. It is true that in this Commonwealth the petition for a writ of mandamus as regulated by statute has become the common method of trying title to an office or of determining the validity of a removal. See, for example, Luce v. Examiners of Dukes County, 153 Mass. 108 , 111; Keough v. Aldermen of Holyoke, 156 Mass. 403 , 404; Ransom v. Mayor of Boston, 193 Mass. 537 , 538; Graves v. School Committee of Wellesley, 299 Mass. 80 , 86. Mandamus under our present practice possesses decided advantages for this purpose and is commonly to be preferred. It is more flexible and effective than certiorari in that the court is not bound by a return but may itself determine the pertinent facts upon an answer showing cause why the writ should not issue and a traverse of material facts alleged in the answer and in that a rival claimant to the office may be required to appear and "to stand as the real party." G.L. (Ter Ed.) c. 249, Section 5, as amended by St. 1938, c. 202. Nevertheless, the proceeding for the removal of the petitioner was of a judicial and not of a purely ministerial character. McCarthy v. Emerson, 202 Mass. 352 , 354. Stiles v. Municipal Council of Lowell, 233 Mass. 174 , 181. It...