Mayor of City of Somerville v. Dist. Court of Somerville

• Decision Date: 20 September 1944
• Citation: 57 N.E.2d 1,317 Mass. 106
• Parties: MAYOR OF CITY OF SOMERVILLE v. DISTRICT COURT OF SOMERVILLE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

317 Mass. 106

57 N.E.2d 1

MAYOR OF CITY OF SOMERVILLE

v.DISTRICT COURT OF SOMERVILLE.

Supreme Judicial Court of Massachusetts, Middlesex.

Sept. 20, 1944.

Exceptions from Supreme Judicial Court, Middlesex County.

Petition by the Mayor of the City of Somerville against the District Court of Somerville for a writ of certiorari to quash the proceedings ordering the reinstatement of six city employees removed by the Mayor. An order was entered by a single justice granting the writ, and the respondent brings exceptions.

Exceptions sustained.

Before FIELD, C. J., and LUMMUS, QUA, DOLAN, WILKINS, and SPALDING, Jj.

R. J. Muldoon, City Solicitor, of Somerville, for petitioner.

R. Clapp, Asst. Atty. Gen., for respondent.

W. P. Murray, of Boston, amicus curiae.

FIELD, Chief Justice.

Six women in the classified civil service employed by the city of Somerville were removed from their positions by the mayor of the city. Three of them were employed in the department of public welfare of the city and their positions are described respectively as ‘Social Worker,’ ‘First Clerk’ and ‘Dental Assistant.’ The other three were employed in the water department of the city and their positions are described respectively as ‘First Clerk,’ ‘Clerk’ and ‘Clerk.’

The statute applicable to such removals is G.L.(Ter.Ed.) c. 31, § 43. There is no contention that the procedural requirements of this statute were not followed, nor that the mayor was not the officer having the power of removal. See St.1899, c. 240, § 44.

In the case of each of the employees here involved the ‘reasons specifically given * * * in writing’ for her removal, as required by G.L. (Ter.Ed.) c. 31, § 43, were (a) that the ‘status [of the employee] as a married woman precludes the continuance of * * * [her] employment by the City * * * as such continued employment would be in conflict’ with an ordinance of the city providing that, with some exceptions, ‘No married woman shall be employed in any capacity in any department of the City of Somerville’ (b) that the mayor ‘adopted the policy of eliminating married women employees from positions in the service of the City,’ and that the ‘continued employment [of the employee] would be in conflict with this policy’; and (c) that in ‘the interest of achieving an economical and prudent administration of the affairs of the City, by the abolition of unnecessary positions in the departments of the City,’ the position now held by the employee ‘is abolished’ and she is ‘removed from the service of the City.’

Thereafter each of these employees brought a petition in the District Court under G.L.(Ter.Ed.) c. 31, § 45, as amended by St.1934, c. 249, § 2, praying that the action of the mayor be reviewed by the District Court. This section provides that the District Court ‘shall review such action, hear the witnesses, and shall affirm the decision of the officer or board unless it shall appear that it was made without proper cause or in bad faith, in which case said decision shall be reversed and the petitioner be reinstated in his office without loss of compensation,’ and that the ‘decision of the court shall be final and conclusive upon the parties.’ The petitions were heard together in a District Court by a special justice, herein referred to as the trial judge, upon a stenographic report, ‘including the exhibits.’ ‘The * * * [employees] testified and most of the other witnesses who had testified at the hearing before the * * * [mayor]. In addition, the * * * [mayor] testified without objection on the part of the * * * [employees], but his evidence was limited to matters occurring prior to the hearing which he accorded the * * * [employees].’ Included in the evidence was a statement made by the mayor prior to his taking evidence at the hearing granted by him to the employees, in which he set forth the reasons for the removal by him of these employees from the service. The trial judge reversed the decision of the mayor ‘removing the * * * [employees] and each of them’ and ordered ‘that the * * * [employees] and each of them be reinstated without loss of pay.’ Findings of fact made by the trial judge are hereinafter set forth.

A proceeding under G.L.(Ter.Ed.) c. 31, § 45, as amended, like a proceeding under G.L.(Ter.Ed.) c. 31, § 42B, applicable to police officers in the classified service, is a ‘review’ of the action of the removing officer. But the scope of review under § 45, as amended, is narrower than the scope of review under § 42B, which provides with respect to the removal of a police officer that, after a hearing before the removing officer or board, if the District Court ‘finds that such action was justified, the decision at the hearing shall be affirmed.’ Costa v. Justices of District Court of Eastern Essex, 305 Mass. 85, 86, 25 N.E.2d 172;Parker v. District Court of East Norfolk, 309 Mass. 377, 379, 35 N.E.2d 207, and cases cited. The word ‘review’ as used in G.L.(Ter.Ed.) c. 31, § 45, as amended, ‘does not in this connection imply a retrial upon the merits. It indicates a reexamination of a proceeding, already concluded, for the purpose of preventing a result which appears not to be based upon the exercise of an unbiased and reasonable judgment. It does not import a reversal of the earlier decision honestly made upon evidence which appears to an unprejudiced mind sufficient to warrant the decision made although of a character respecting the weight of which two impartial minds might well reach different conclusions, and upon which the reviewing magistrate, if trying the whole issue afresh, might make a different finding.’ And the burden of establishing the essential facts-that the removal was made ‘without proper cause’ or made ‘in bad faith’-rests upon the employee removed. Murray v. Justices of the Municipal Court of the City of Boston, 233 Mass. 186, 189, 123 N.E. 682, 683. See also Mayor of Medford v. Judge of First District Court of Eastern Middlesex, 249 Mass. 465, 470, 471, 144 N.E. 397;Ott v. Board of Registration in Medicine, 276 Mass. 566, 569, 177 N.E. 542;Commissioner of Institutions of Boston v. Justice of the Municipal Court of the Roxbury District, 290 Mass. 460, 463, 195 N.E. 783;Walsh v. District Court of Springfield, 297 Mass. 472, 475, 476, 477, 9 N.E.2d 555;Costa v. District Court of Eastern Essex, 305 Mass. 85, 86-88, 25 N.E.2d 172. A ‘review’ under G.L.(Ter.Ed.) c. 31, § 42B, differs from a ‘review’ under G.L.(Ter.Ed.) c. 31, § 45, as amended, not only with respect to the issue to be determined in the District Court, but also with respect to the burden of proof. Under G.L.(Ter.Ed.) c. 31, § 42B, support of the action of the removing officer requires ‘an affirmative finding by the court in the exercise of sound judicial judgment upon all the evidence that such action ‘was justified,” importing that ‘the preponderance of proof on all the evidence must support the conclusion that such action ‘was justified.” Selectmen of Wakefield v. Judge of First District Court of Eastern Middlesex, 262 Mass. 477, 482, 160 N.E. 427, 430; Mayor of City of Lynn v. Judge of the District Court of Southern Essex, 263 Mass. 596, 598, 599, 161 N.E. 811.

After the decision in the District Court the mayor brought this petition against the judge of the District Court (see Walsh v. District Court of Springfield, 297 Mass. 472, 476, 9 N.E.2d 555) for a writ of certiorari to quash the proceedings ordering the reinstatement of the six employees who had been removed by him. McLaughlin v. Mayor of Cambridge, 253 Mass. 193, 199, 200, 148 N.E. 458, and cases cited; Whitney v. Judge of the District Court of Northern Berkshire, 271 Mass. 448, 458, 171 N.E. 648. The case was heard by a justice of this court upon the petition and the return of the respondent and, after hearing, the justice ruled and ordered as follows: ‘Because I cannot say as matter of law that reasonable men charged with the performance of such executive functions, as was the petitioner, could not fairly and impartially come to the same conclusion that he reached, I cannot rule that the assigned cause for the removals in question was an improper or inadequate cause. An order is to be entered ordering the writ to issue.’ The respondent excepted.

We interpret the order that a writ of certiorari issue as an order that the decision of the District Court be quashed, which was the purpose of the order since, as a return to the petition had been filed, there was no occasion to issue the writ. Sesnovich v. Board of Appeal of Boston, 313 Mass. 393, 398-400, 47 N.E.2d 943.

The ruling and order of the single justice were erroneous.

The return of the respondent to the petition sets forth with other matters hereinbefore stated the findings and decision of the trial judge as follows: ‘In reviewing the action of the * * * [mayor] in removing the * * * [employees], I find: That the * * * [employees] had been employed for many years under the protection of the State civil service laws, were experienced and skilled in their work and had performed their duties with ability and fidelity; that the * * * [mayor] and the heads of the departments where they were employed entertained no bias or ill-will toward any of the * * * [employees]; that the duties of the * * * [employees] were so general in the department where they were employed, that it was not possible to abolish their positions except by permanently reducing the number of employees engaged in similar work; that this was not done in fact, nor could it be done without neglecting the work of the departments; that the only reason for the removal of the * * * [employees] was that they were married women whose husbands were gainfully employed; and that the other causes assigned for their removal were not justified. I therefore find, that the * * * [employees], and each of them, were removed without proper cause, although I believe that the * * * [mayor] acted in good faith. Accordingly, I reverse the decision of the * * * [mayo...