Mayor of Newton v. Civil Service Commission

• Decision Date: 08 December 1955
• Citation: 130 N.E.2d 690,333 Mass. 340
• Parties: MAYOR OF NEWTON et al. v. CIVIL SERVICE COMMISSION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 690

130 N.E.2d 690

333 Mass. 340

MAYOR OF NEWTON et al. v. CIVIL SERVICE COMMISSION.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 7, 1955.

Decided Dec. 8, 1955.

Matt B. Jones, Jr., Boston, for petitioners.

Harris A. Reynolds, Asst. Atty. Gen., for respondent.

Before QUA, C. J., and RONAN, WILKINS, SPALDING and COUNIHAN, JJ.

RONAN, Justice.

This is a petition for a writ of certiorari brought by the petitioners, the mayor and the chief of police of Newton, ¹ against the respondents constituting the civil service commission to quash the decision of the commission ordering the petitioners to reinstate on January 1, 1954, one Prescott to his position as a member of the police department of said city. The petitioners appealed from an order entered in the Superior Court 'that the action of the respondents be and hereby is affirmed and judgment is ordered entered accordingly.'

Prescott was found guilty of being intoxicated on a public way in Newton on June 29, 1953. He was fined and appealed but later withdrew his appeal and the complaint was filed. Charges were preferred by the appointing authority against Prescott for being intoxicated on June 29, 1953, and for conduct unbecoming an officer and after a hearing on July 7, 1953, he was ordered suspended until January 1, 1954. He did not appeal from that decision. On October 12, 1953, a holiday, he was operating an automobile in Lexington. He had been drinking. He evidently thought it was not safe to continue to drive along the public way and he parked the automobile in the driveway of a closed filling station. He became involved in an argument with a third person. He later was arrested, another officer driving his automobile to the station. He was fined at the District Court at Concord and paid the fine. He was found guilty, after a hearing on November 4, 1953, by the appointing authority, on charges of intoxication and of conduct unbecoming an officer and discharged from the police department. Prescott appealed to the civil service commission. He was given a hearing before the chairman of the commission. G.L.(Ter.Ed.) c. 31, § 43(b), as appearing in St.1948, c. 240.

The chairman reported his findings to the commission. Three members of the commission on December 7, 1953, filed a memorandum and voted to receive the report of the hearing member, and 'to modify the penalty to read that the previous penalty awarded by the appointing authority of a suspension to January 1, 1954, be served by said Prescott, at which time he is to be restored to his full duty as a police officer.' The hearing member voted to sustain the appointing authority in discharging Prescott. The remaining member votes 'present.'

The petition for a writ of certiorari was heard in the Superior Court on the petition and return which included the written report of the hearing member, a transcript of the evidence heard by him, and the memorandum of the majority members. This appeal from an order for judgment affirming the action of the commission brings the case here. Adamsky v. City Council of New Bedford, 326 Mass. 706, 96 N.E.2d 718; Hannigan v. Board of Appeals of Lowell, 328 Mass. 366, 103 N.E.2d 696. Compare Feener Business Schools, Inc. v. Board of Collegiate Authority, 329 Mass. 170, 107 N.E.2d 434. Our inquiry is to determine whether there is any substantial error of law on the face of the record. Whitney v. Judge of the District Court of Northern Berkshire, 271 Mass. 448, 458, 171 N.E. 648. Real Properties, Inc., v. Board of Appeal of Boston, 319 Mass. 180, 181, 65 N.E.2d 199, 168 A.L.R. 8.

There are trivial mistakes in the written report of the hearing member which we need not pause to discuss. His principal error was in apparently considering that there was a withdrawal of the suspension of July 7, 1953, a notice of which suspension had been given on July 8, 1953, by the appointing authority to the director of civil service informing him of the suspension of Prescott, terminating on January 1, 1954, and requesting his reinstatement at the 'expiration of suspension.' All parties in interest agree that there is nothing in the evidence to support a finding that the suspension was ever withdrawn. None of them contends that there was such a withdrawal. The case was tried upon the theory that the suspension of July 7, 1953, was in full force and effect when Prescott was found guilty of being intoxicated in Lexington and ordered discharged from the department. The four commissioners who voted found that Prescott was intoxicated on that occasion. The majority, however, point out that, there being no evidence of any disturbance or violation of law other than drunkenness, they did not agree that the fact a man is arrested for drunkenness proves, without any other evidence, that he is guilty of conduct unbecoming an officer. There is here more than drunkenness alone. It would be difficult in view of the circumstances which have already been mentioned attending his arrest to conclude that Prescott's conduct was otherwise than unbecoming.

The majority next points out that Prescott was not in uniform or on duty. That was not decisive. It was said in Mayor of Medford v. Judge of First District Court of Eastern Middlesex, 249 Mass. 465, 470, 144 N.E....