Jellerson v. Bd. of Police of city of Biddeford

• Citation: 187 A. 713
• Decision Date: 10 October 1936
• Docket Number: Nos. 647, 648.,s. 647, 648.
• Court: Supreme Judicial Court of Maine (US)
• Parties: JELLERSON v. BOARD OF POLICE OF CITY OF BIDDEFORD. PARENT v. SAME.

187 A. 713

JELLERSON

v. BOARD OF POLICE OF CITY OF BIDDEFORD.

PARENT

v. SAME.

Nos. 647, 648.

Supreme Judicial Court of Maine.

Oct. 10, 1936.

Exceptions from Superior Court, York County.

Petitions for writs of certiorari by Ralph B. Jellerson and Oscar G. Parent against the Board of Police of the City of Biddeford. On exceptions by the Board of Police of the City of Biddeford to the overruling of its special demurrers.

Exceptions sustained.

Argued before DUNN, C. J., and STURGIS, BARNES. THAXTER, HUDSON, and MANSER, JJ.

Armstrong & Spill, of Biddeford, for petitioners.

Louis B. Lausier and William P. Donahue, both of Biddeford, for respondent.

HUDSON, Justice.

Petitions for issue of writs of certiorari.

Both actions involve identical questions of law. In each the respondents filed a special demurrer, to the overruling of which exceptions were taken. They are not presented prematurely. Tripp v. Park Street Motor Corporation, 122 Me. 59, 118 A. 793.

Of the twenty-two causes relied upon by the respondents, the sixth is the first of merit. It is that the petitioners failed to set forth in, or to annex to, their petitions a copy "of the proceedings wherein alleged errors of law and unlawful acts on the part of the Board of Police appear."

"Certiorari is a writ issued by a superior court to an inferior one commanding it to certify up its record of some proceeding, not according to the course of the common law, that it may be seen and determined whether there is any error therein for which the record should be quashed. The error must appear in the record of the inferior court." Inhabitants of Nobleboro, Petitioners v. County Commissioners of Lincoln County Com'rs, 68 Me. 548, 551.

"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." Mayor of Medford v. Judge of First District Court of Eastern Middlesex, 249 Mass. 465, 468, 144 N.E. 397.

"An inspection of the record alone must determine the sufficiency of the proceedings." Stevens v. County Commissioners, 97 Me. 121, 123, 53 A. 985, 986.

Certiorari does not bring up for review the evidence, decisions, and rulings, but only the record of the proceedings and orders which are in the nature of a record. Pike v. Herriman, 39 Me. 52. It "may be adjudged of, and acted upon by the examination of a copy, as well as of the original." Dyer v. Lowell, 33 Me. 260, 262. Only such errors or defects as appear on its face as brought up can be considered, Ross v. Ellsworth et al., 49 Me. 417; and, "when the writ issues, the court can act only on the record as produced. No evidence aliunde is receivable," Lord et al. v. Cumberland County Commissioners, 105 Me. 556, 561, 75 A. 126, 128, 18 Ann.Cas. 665, and cases cited.

On the petitioner is the burden to establish irregularities and errors in the record. He must lay the foundation for such proof by proper and sufficient allegation in his petition. This requires that it contain, either by inclusion or annexation, a copy of the record sought to be quashed; or, if the petitioner cannot include or annex it, he should allege his reasons for his inability so to do, as, for instance, demand upon the tribunal for access to the record and refusal. The fact that the respondent in certiorari must certify the record does not relieve the petitioner, when possible, from setting it forth in, or annexing it to, his petition. This court has heretofore stated that in "petitions for the writ of certiorari a copy of the record sought to be quashed should be annexed." Hewett v. County Commissioners, 85 Me. 308, 27 A. 179.

The seventh cause also has merit, that the petitioner did not aver that his "alleged causes of error" were "errors which appear on the records of the Board of Police." In Emery et al. v. Brann et el., 67 Me. 39, on page 44, it is said:

"But it is not alleged in the petition that the irregularities and errors specified appear by the record of the justices, which they seek to have quashed. The petition should contain such an allegation."

The necessity therefor is apparent. In certiorari the issue involves the legal sufficiency of the record. Consequently, failure of allegation in the...