Mayor of Beverly v. First Dist. Court of Essex

• Decision Date: 14 February 1951
• Citation: 97 N.E.2d 181,327 Mass. 56
• Parties: . Supreme Judicial Court of Massachusetts, Suffolk
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 181

97 N.E.2d 181

327 Mass. 56

MAYOR OF BEVERLY v. FIRST DISTRICT COURT OF ESSEX et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 6, 1950.

Decided Feb. 14, 1951.

W. E. Carey, Lynn, T. J. Casey, Boston, for respondent.

T. D. Lavelle, Boston, for the petitioner.

Before QUA, C. J., and WILKINS, WILLIAMS and COUNIHAN, JJ.

WILLIAMS, Justice.

This is a petition by the mayor of the city of Beverly for a writ of certiorari against the First District Court of Essex to quash and reverse the findings and decision of a judge of that court in relation to the removal from office of one Marley, a captain in the police force of the city. Marley has been allowed to intervene.

The proceedings now in question arise from a complaint filed with the mayor by the chief of the Beverly police department on August 22, 1949, alleging conduct on the part of Marley unbecoming an officer in that for a period of three and one half years he had sexual intercourse with a certain named married woman. On September 9, 1949, the mayor held a hearing on the complaint at which hearing Marley was represented by counsel. Marley was found guilty of the charge on September 12, 1949, and ordered discharged from the department as of twelve o'clock noon of the same day. Upon request by Marley, a hearing was held before a member of the civil service commission designated by the chairman. G.L.(Ter.Ed.) c. 31, § 43(b), as appearing in St. 1948, c. 240. On November 16, 1949, the commissioner found that Marley was guilty and that the mayor's action in discharging him was 'justified.' On November 17 Marley was notified that the civil service commission had voted 'to affirm the action of the mayor.' Marley filed a petition for review in the First District Court of Essex on December 14. G.L.(Ter.Ed.) c. 31, § 45, as appearing in St. 1945, c. 667, § 2. A hearing was held by a judge of that court, at which the case was submitted by the parties on the stenographer's transcript of the testimony presented at the hearings before the mayor and the commissioner. No oral evidence was offered. On February 20, 1950, the judge found that the mayor was not justified in discharging Marley and that the commission was not justified in confirming the discharge. He reversed the 'action' of the mayor and the commission and reinstated Marley to his office without loss of compensation. A judge of the Superior Court, after hearing on the writ of certiorari, ordered the entry of judgment 'quashing the decision and orders of the' judge of the District Court. Both the judge of the District Court and Marley have appealed. In the Superior Court the case was heard solely upon the return which included the entire record before the District Court. As there has been no final judgment but only an order for judgment, the appeals are here not under G.L. (Ter.Ed.) c. 213, § 1D, as inserted by St. 1943, c. 374, § 4, but under G.L. (Ter.Ed.) c. 231, § 96. See Town of Needham v. County Commissioners of Norfolk, 324 Mass. 293, 295, 86 N.E.2d 63; Adamsky v. City Council of New Bedford, 326 Mass. 706, 96 N.E.2d 718. The issue before the Superior Court was whether the judge of the District Court committed error of law in dealing with the issues before him. Parker v. District Court of East Norfolk, 309 Mass. 377, 380, 35 N.E.2d 207; Mayor of Medford v. Judge of First District Court of Eastern Middlesex, 249 Mass. 465, 468, 144 N.E. 397. The order for judgment was an order decisive of the case founded on matter of law apparent on the record. Its correctness in point of law is before us for decision. Harrington v. Anderson, 316 Mass. 187, 191, 55 N.E.2d 30; Town of Needham v. County Commissioners of Norfolk, 324 Mass. 293, 295, 86 N.E.2d 63.

It is unnecessary to recite in detail the testimony taken at the two hearings before the mayor and the commissioner which was submitted to the judge of the District Court in the form of stenographic records. The woman who was named in the complaint was the wife of a police officer in the department in which Marley was captain. She and her husband were friends of Marley and his wife. She testified that over a period of three and one half years Marley had been in the habit of coming to her home in the absence of her husband and on forty or fifty occasions had sexual intercourse with her. She testified before the mayor that Marley had forced her to have intercourse. She also related various other indecencies on the part of Marley in both words and conduct. Before the commissioner she testified that the force to which she referred was the force of fear as to the result of her refusal on the prospects of her husband in the department in which Marley was captain. Marley's testimony was a complete denial of her testimony. He offered the testimony of a medical and psychiatric expert that, in his opinion, the woman was suffering from hysteria and that in her physical and mental state due to having recently passed through the menopause her testimony was not to be believed. The 'finding' of the judge of the District Court so far as material to the woman's testimony is as follows: 'It is inconceivable that the respondent, Robert J. Rafferty, mayor of the city of Beverly, should have given credence to the fantastic testimony presented at the hearing before him by Mrs. * * * whose testimony was the only testimony offered in direct support of the charge and specification against the petitioner. Not only was this testimony of Mrs. * * * not corroborated in any important detail, but it was later in part contradicted by her at the hearing before the civil service commission. * * * The respondent, Robert J. Rafferty, mayor of the city of Beverly, did not have adequate reasons sufficiently supported by credible evidence, when weighed by an unprejudiced mind, guided by common sense, upon which to found the discharge of the petitioner; and the civil service commission did not have adequate reasons, sufficiently supported by credible evidence, when weighed by an unprejudiced mind, guided by common sense, to affirm the said action of the respondent, Robert J. Rafferty, mayor of the city of Beverly.'

In considering this 'finding' the judge of the Superior Court ruled as follows: 'The statements in the paragraph...