Kelley v. City Council of City of Cranston

• Decision Date: 05 August 1938
• Docket Number: No. 690.,690.
• Parties: KELLEY v. CITY COUNCIL OF CITY OF CRANSTON.
• Court: Rhode Island Supreme Court

1 A.2d 185

KELLEY

v. CITY COUNCIL OF CITY OF CRANSTON.

No. 690.

Supreme Court of Rhode Island.

Aug. 5, 1938.

Proceeding in certiorari by William E. Kelley against the City Council of the City of Cranston to review and quash the record of a hearing of certain charges against petitioner before the council and to review and quash the record of the decision of that body.

Writ of certiorari quashed.

Edward M. Sullivan, of Providence, for petitioner.

Edward W. Day, of Providence, for respondents.

CAPOTOSTO, Justice.

This is a petition for a writ of certiorari to review and quash the record of the hearing of certain charges against the petitioner before the city council of the city of Cranston, and also to review and quash the record of the decision of that body, dated April 15, 1938, finding the petitioner guilty of the charges preferred against him and ordering his removal by the mayor as a member of the permanent police department of the city of Cranston.

Upon the filing of the petition in this court, a citation was issued to the respondent returnable May 23, 1938, to show cause why the writ of certiorari, as prayed for, should not be issued. On May 23, the return-day thereof, the petitioner appeared through his counsel, as did the respondent, the latter bringing before us the certified record and papers pertinent to the case. In the circumstances both petitioner and respondent requested the court that the matter be treated as if such record and papers were returned on a writ of certiorari which had been duly issued and served. This request being granted, the case proceeded to hearing as if the writ of certiorari had issued.

It appears by the petition that on February 15, 1938, the mayor caused written notice to be served upon the petitioner, informing him that he, the mayor, had suspended the petitioner as a member of the permanent police force of the city of Cranston, upon charges made against him by the chief of police of that city and filed with the mayor. The charges specified in this communication were as follows: "You are charged with misconduct as a Police Officer in that, on Sunday February 13, 1938 you failed to pull your duty call at 4:40 A. M. as required by police regulations, and were thereafter found asleep in the building of the Amoco Gas Station, so called, at the corner of Pontiac Avenue and Park Avenue in said City of Cranston." This communication further advised the petitioner that such charges would be submitted to the city council on Friday, February 18, 1938, at 8 p. m., at which time the petitioner would be given an opportunity to be heard thereon.

The petition further alleges that the petitioner appeared on February 18, 1938, according to the written notice served upon him, and challenged the jurisdiction of the city council to try and determine the charges against him at its meeting of that date; that notwithstanding such protest, the city council proceeded to hear the testimony of witnesses in support of the charges, and, upon the termination of that hearing, the city council, which was composed of eighteen councilmen with the mayor as presiding officer, unanimously adopted a resolution declaring him guilty of misconduct and ordering his removal and dismissal as a member of the police department; that thereafter these proceedings before the city council were reviewed here on certiorari, and that this court then found that the city council was without jurisdiction to try the petitioner at its meeting of February 18, 1938, and ordered the record to be quashed. This allegation in the petition refers to our recent decision in Kelley v. City Council of City of Cranston, R. I., 198 A. 346, where the extent of the relief granted and the reasons therefor are fully stated.

The petition further alleges that on April 9, 1938, written notice was served upon the petitioner that the abovementioned charges pending against him would be heard by the city council at its meeting on April 15, 1938, at 8 p. m.; that he appeared with counsel at that meeting, and that, as soon as the charges against him were called for hearing, he filed two challenges and protests in writing, which are set out in the petition, one directed to the mayor and the other to the members of the city council, severally and collectively, challenging their right and the right of each of them to hear and determine the charges against him by reason of disqualification.

The ground of disqualification stated by the petitioner in his written challenge and protest to the mayor is that the mayor, who presided at the meeting of the city council of February 18, 1938, "by his approval of the vote of said City Council that said respondent (the petitioner herein) was guilty of misconduct under the charges here pending showed prejudice against respondent and is not a fair and impartial presiding officer, or in the event of a tie vote, a voting member of said City Council and is not now a fair and impartial trier of the facts." The ground of disqualification stated by the petitioner in his challenge and protest to the city council and each member thereof is that, having participated in the hearing of the charges against the petitioner on February 18, 1938, and having voted that he was guilty of the same charges upon which he was again about to be tried, they had prejudged the petitioner on those charges and, therefore, were not then "fair and impartial triers of the facts."

The petition further alleges that, notwithstanding the petitioner's challenges and protests, the mayor and city council proceeded to hear and determine the charges against the petitioner by receiving testimony in support and in defense of the charges, and that, at the conclusion of the hearing, the city council unanimously voted that the petitioner was guilty of misconduct, as charged, and ordered his dismissal as a member of the police department of the city of Cranston. The petitioner contends that this action of the mayor and city council was without warrant in law and that he was illegally removed from office.

The facts recited in the petition are substantially supported by the evidence in the instant case, with the exception of the allegation in reference to our decision in the Kelley Case, supra, which is too broad. We held in that case that, according to the provisions of Public Laws 1923, chapter 472, under which the charges against this petitioner were preferred, the city council was without jurisdiction to proceed with the hearing of those charges at the meeting of February 18, 1938, and that, under the statute, the hearing should have been continued to the next regular meeting of the city council. But we also held that the charges against the petitioner had been properly preferred and that he had received sufficient notice of the pendency of those charges. In quashing "such parts of the record of the meeting of the city council of Cranston on February 18, 1938, as set forth the hearing of charges against William E. Kelley, and the vote ordering his removal from office as a member of the permanent police department of said city", we expressed the opinion that it was in the interest of all concerned, including the public, that the charges, of which the petitioner had sufficient notice and which were unaffected by our order, should be promptly heard and determined. We therefore held that, in view of the special circumstances in the case, "the charges already made in writing to the city council may properly be heard and determined at its next regular meeting" after the filing of our opinion.

The transcript of the proceedings before the city council in the instant case shows that, immediately after the reading of the petitioner's challenges and protests above mentioned and the filing thereof with the city council, the following conversation took place between the city solicitor and counsel for the petitioner:

Mr. Day: "At this time, Mr. Sullivan, do you or Mr. Kelley desire to present evidence in support of your charge that Mayor Ernest L. Sprague and each and every one of the councilmen whom you have named are biased and prejudiced and incapable of rendering a fair and impartial verdict on the evidence ?"

Mr. Sullivan: "I stand on the record."

Mr. Day: "I take it you don't care to present any evidence. Am I correct?"

Mr. Sullivan: "I stand on the record."

The transcript further shows that the city solicitor then addressed the mayor as follows: "For the record, Mr. Mayor, is there any reason why you cannot sit here tonight and, if called upon to vote under the charter of this city, render an absolutely fair and impartial verdict on such evidence and testimony as will be presented here tonight?" Mayor Sprague: "There is no reason whatsoever." He then addressed a similar question to the members of the city council, admonishing them that it was their duty and the duty of each one of them to make it known if they could not give the petitioner a fair hearing, so that any such might be excused from serving at that time. Receiving no answer to his question and admonishment, the city solicitor had it noted on the record that "no one of the councilmen in response to my several and collective questions, has stated that he is unable to render an absolutely fair and impartial verdict in this matter." The petitioner, even under these circumstances, did not see fit to present evidence as to the existence of any bias or prejudice on the part of the mayor or the city council against him personally, nor did he make or request that he be permitted to make any inquiry in reference thereto, but elected to go to hearing on the merits of the charges, cross-examining the witnesses against him and testifying in his own defense.

It appears in evidence that, on February 12, 1938, the petitioner went on duty at 11:45 p. m., and that according to the police regulations he was required to send hourly calls from police boxes on his post to police headquarters, commencing at...