Hagerty v. Shedd

• Decision Date: 07 December 1909
• Citation: 75 N.H. 393,74 A. 1055
• Parties: HAGERTY v. SHEDD et al. ATTORNEY GENERAL v. CROWLEY.
• Court: New Hampshire Supreme Court

74 A. 1055

75 N.H. 393

HAGERTY

v. SHEDD et al.

ATTORNEY GENERAL

v. CROWLEY.

Supreme Court of New Hampshire. Hillsborough.

Dec. 7, 1909.

Transferred from Superior Court, Hillsborough County; Chamberlin, Judge.

Petition for certiorari by John Hagerty against Albert Shedd and others, and petition for quo warranto by the Attorney General, on the relation of John Hagerty, against T. A. Crowley. Facts found, and cases transferred from the superior court upon respondent's exceptions to the granting of the writs in each case. Exceptions overruled.

Hamblett & Spring and Wason & Moran, for petitioner Hagerty. Doyle & Lucier and Burnham, Brown, Jones & Warren, for defendants Shedd and Crowley.

BINGHAM, J. The first proceeding is a petition for a writ of certiorari, directing the mayor and aldermen of the city of Nashua to certify the records of their proceedings in removing Hagerty from membership in the board of public works of that city, and asking that their order removing him from office be decreed null and void. The second is a petition for a writ of quo warranto to oust the defendant Crowley from membership in the board of public works, he having been appointed by the mayor and aldermen of the city to fill the vacancy caused by the removal of Hagerty, and having qualified and entered upon the duties of the office. In the superior court the writ of certiorari was granted, and the record and proceedings of the mayor and aldermen in removing Hagerty from office were quashed and adjudged void, and the defendants excepted. In the quo warranto proceeding the trial judge found that the defendant was usurping the office from which Hagerty had been removed, and declined to allow the defendant to show the real cause upon which the mayor and aldermen acted in making the order of removal, and the defendant excepted.

The various contentions of the parties in these cases depend largely upon the decision of the question of the capacity in which the mayor and aldermen acted in removing Hagerty from office. If their powers were administrative and not judicial, there would be no occasion for a writ of certiorari to correct the record or set aside the proceedings. State v. Richmond, 26 N. H. 232, 236. In such case the record might be amended to conform to the facts, on motion made for that purpose in any proceeding where it was brought in question. If, however, their powers were judicial, the mayor and aldermen having jurisdiction of the subject-matter upon which they acted, there may have been, and probably was, occasion for a writ of certiorari to set the proceedings aside, although they were summary, without preferment of charges, notice, and hearing. Gibbs v. Manchester, 73 N. H. 265, 267, 61 Atl. 128. But if the fact that the proceedings were summary would render them subject to attack collaterally, that would not constitute a valid objection to a direct proceeding to set them aside. "Indeed, it may be regarded as settled that though a party has a right to treat the proceedings of an inferior tribunal as nullities in a collateral proceeding, he may, nevertheless, maintain a certiorari to set them aside." State v. Richmond, 26 N. H. 232, 237.

It appears that Hagerty's appointment was legal, and that his office carried a fixed salary and was for a term of three years. The statute under which the removal was made reads as follows: "The mayor, with the advice and consent of the majority of the full board of aldermen, may remove any member appointed as aforesaid for cause." Laws 1901, p. 797, c. 283, § 2. If the word I "cause," as here used, meaus legal cause, and after notice and hearing, the statute confers judicial powers, and means the same as though it read "for cause, after notice and hearing." Gibbs v. Manchester, supra. In Shannon v. Portsmouth, 54 N. H. 183, the action was assumpsit to recover compensation for the services of the plaintiff as a constable and police officer, from July 17, to December 15, 1870. He was duly appointed a constable and police officer of Portsmouth January 13, 1870, and qualified and served as such down to July 7th of that year. He was then notified to appear before the mayor and aldermen to answer charges verbally preferred against him, appeared, and was heard. Thereupon the mayor and aldermen voted that he be suspended from duty. From that time down to December 15, 1870, when he was reinstated, he was not permitted to perform the duties of his office, although ready and willing at all times to do so. At the trial he offered to prove that there was no sufficient cause for his removal or suspension, but the evidence was excluded, and a verdict found for the defendants, subject to exception. The provision of the charter of Portsmouth under which the action was taken reads as follows: "They [the mayor and aldermen] shall have full and exclusive power to appoint a city marshal and assistants, constables, and all other police officers, * * * and to remove the same from office for sufficient cause, the mayor and aldermen each having a negative on the other, both in the appointment and removal of the officers." Laws 1849, p. 828, c. 836, § 13. In construing the act it was held: (1) That the power to remove included the...