Mayor of Medford v. Judge of First District Court of Eastern Middlesex.

• Decision Date: 12 June 1924
• Citation: 249 Mass. 465
• Parties: MAYOR OF MEDFORD v. JUDGE OF FIRST DISTRICT COURT OF EASTERN MIDDLESEX.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

249 Mass. 465

MAYOR OF MEDFORD v. JUDGE OF FIRST DISTRICT COURT OF EASTERN MIDDLESEX.

Supreme Judicial Court of Massachusetts, Middlesex. January 9, 1O, 1924. --

June 12, 1924

Present: RUGG, C.

J., DE COURCY CROSBY, PIERCE, & WAIT, JJ.

Certiorari. District Court.

Police Officer Removal for cause. Civil Service.

Upon the hearing of a petition for a writ of certiorari to bring before this court a record properly extended so as to show the principles of a decision by an inferior tribunal, whose duties are judicial or quasi judicial in nature, findings of fact are not commonly open to revision, but only errors of law can be reviewed.

In reviewing under G.L.c. 31, Section 45, the action of a mayor in removing a police officer of a city on charges filed before him on February 13,

1923, alleging conduct unbecoming an officer on March 30, 1922, a judge of a district court held that "A charge made February 13 1923, of conduct unbecoming an officer on March 30, 1922, is too remote to be entered as a charge . . . ." Held, that such conclusion could not rightly be regarded as anything other than a ruling of law and that it was erroneous, the offence charged not being too remote in time as matter of law to be considered as a basis for removal.

At the hearing under G.L.c. 31, Section 45, in review by a judge of a district court of action of the mayor of a city in removing from duty a member of the police force on a charge that on January 16, 1923, the officer was guilty of conduct unbecoming a police officer, no oral evidence was presented, but by agreement the case was submitted on the charges made and a stenographic report of the evidence and proceedings before the mayor, the mayor's decision and the rules and regulations of the police department. The district court judge in his decision stated that "no evidence supports" the charge relating to January 16, 1923. The evidence reported tended to show improper relations on the date named between the patrolman and a woman not his wife in a room occupied by both of them. Held, that

(1) While it was not clear whether the decision of the judge was a ruling of law or an attempt to determine the credibility of the evidence shown by the record, this court treated it as a ruling of law;

(2) The ruling was erroneous since there was evidence reported which warranted the decision by the mayor;

(3) The circumstance that the evidence upon which the finding of the mayor was based related to a time when the police officer was not in uniform and not on duty was not decisive: his conduct while off duty and in civilian clothes might be of such nature as to show him unfit to act as a police officer;

(4) The facts, appearing in the record, that the officer did not testify at the hearing before the mayor and did not deny the testimony against him or explain his conduct as disclosed thereby, were circumstances entitled to weight against him.

The function of a judge of a district court under G.L.c. 31, Section 45, in reviewing action of an officer or board in removing a member of the police force is not to give a complete new trial or a full hearing of the case upon its merits but merely to "affirm the decision of the officer or board unless it shall appear that it was made without proper cause or in bad faith."

Charges filed with a mayor under G.L.c. 31, Section 44, for the removal of a police officer are not to be construed with the strictness of an indictment or complaint.

A charge filed before a mayor seeking the removal of a police officer was that he was guilty of violating the rules of the police department on a certain date. The officer made no objection to the charge on the ground that it was vague or indefinite, and did not ask for further specifications. He was afforded every opportunity to present all evidence that he desired, but rested his case at the conclusion of evidence against him. The mayor found him guilty on the charge and ordered his removal. A review was had before a judge of a district court under G.L.c. 31, Section 45, and the judge ruled as follows: "The rules and regulations of the police department of the city of Medford are contained in a book of seventy-eight pages. No violated rule is set forth and it is not supposed that the charges included all of them. The allegation is too vague." Held, that

(1) While the charge might have been more specific, in the circumstances and on the record there was nothing to indicate that substantial justice was not done to the officer;

(2) It was doubtful whether it could have been ruled as matter of law that the action of the mayor should be set aside, on the ground stated by the judge, as made "without proper cause";

(3) While it was not necessary to decide that point, this court stated that they should hesitate to order the issuance of a writ of certiorari on such ground.

At the trial before a mayor under G.L.c. 31, Section 44, of charges seeking the removal of a police officer which contained allegations that in

March, 1922, and in January, 1923, he had performed improper acts, the mayor admitted evidence of five different offences by the police officer, respectively in September, 1907, April, 1911, November, 1916,

June, 1918, and February, 1919. The mayor having found the officer guilty on the charges, added, "I further find that if just cause for removal as aforesaid does not exist in the findings and decision hereinbefore made under . . .[the specifications named] just cause for removal exists in them in view of the previous record of the officer above set forth." On a review of the action of the mayor by the judge of a district court under G.L.c. 31, Section 45, the judge stated: "I am of the opinion that the decision and removal was not altogether based, if at all, upon the charges as legally presented" in the charges before the mayor "but upon some five additional offences . . . [specified by earlier dates]. The mayor expresses doubt that just cause for removal exists when confined to the charges filed . . . [before him], and upon which the hearing was held." Upon a petition for a writ of certiorari to quash the action of the judge of the district court, it was held, that

(1) The interpretation by the judge of the district court of the action of the mayor was not correct;

(2) Such interpretation presented only a question of law; (3) The action by the mayor as stated in his decision was explicit and the added statement quoted above was not an expression of doubt but was rather in the nature of further facts in fortification of a conclusion already reached and stated in unequivocal words;

(4) While the previous record of the officer in the police department could not properly have been made or used as a ground for removal unless specified as one of the "reasons specifically given in writing" under

G.L.c. 31, Section 44, it well might have been considered on the question of the ultimate action on other charges.

PETITION, filed in the Supreme Judicial Court on July 12, 1923, seeking a writ of certiorari requiring the respondent to certify the record of proceedings before him reviewing action of the petitioner relating to the removal of one Daniel J. Fitzpatrick from the office of patrolman of the city of Medford.

The petition and the answer thereto set out all of the record in the district court. The charges against Fitzpatrick, so far as material, were as follows:

"2. That on or about March 30, 1922, and on or about January 13, and January 16, 1923, your conduct was unbecoming a police officer of the city of Medford.

"3. That on January 15, . . . 1923, you violated the rules of the police department of the city of Medford."

The evidence before the mayor, petitioner herein, tended to show improper relations between Fitzpatrick while a patrolman and a woman to whom he was not married, in rooms occupied by both of them on March 30, 1922, and January 16, 1923, and that on January 15, 1923, Fitzpatrick had falsely stated sickness as a reason for procuring leave of absence from duty.

The case came on to be heard by Crosby, J., and was reserved by him for determination by the full court.

L. G. Brooks, for the petitioner.

F. P. Garland, (F.

D. Healy with him,) for the respondent.

RUGG, C.J. This is a petition for a writ of certiorari brought by the mayor of Medford against the judge of the First District Court of Eastern Middlesex.

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. Findings of fact are not commonly open to revision. The case at bar is a proper one for certiorari. Driscoll v. Mayor of Somerville, 213 Mass. 493 . Swan v. Justices of the Superior Court, 222 Mass. 542 , 544. Commissioner of Public Works of Boston v. Justice of Municipal Court of Dorchester District, 228 Mass. 12, 16. Westport v County Commissioners, 246 Mass. 556 . Rex v. Nat Bell Liquors, Ltd. [1922] 2 A. C. 128, 153-156.

The petitioner in the case at bar, acting as mayor, removed one Fitzpatrick as police officer of Medford. The police officer was within the classified service. There was compliance with all requirements of the statute as to notice and hearing. After his removal, Fitzpatrick brought a petition in the district court of the judicial district where he resided addressed to the respondent as judge of that court, praying that the action of the mayor in removing him...