Murphy v. Third District Court of Eastern Middlesex

• Decision Date: 11 September 1944
• Citation: 56 N.E.2d 467,316 Mass. 663
• Parties: REGINALD J. MURPHY v. THIRD DISTRICT COURT OF EASTERN MIDDLESEX.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

316 Mass. 663

56 N.E.2d 467

REGINALD J. MURPHY v. THIRD DISTRICT COURT OF EASTERN MIDDLESEX.

Supreme Judicial Court of Massachusetts, Middlesex.

September 11, 1944

April 3, 1944.

Present: FIELD, C.

J., LUMMUS, QUA DOLAN, & WILKINS, JJ.

District Court Review of action with respect to civil service. Public Works. Civil Service.

On a review by a District Court under G. L. (Ter. Ed.) c. 31, Section 45, of a removal of a civil service employee, the only issues open are whether the removal was without proper cause and whether it was made in bad faith; the question whether there was compliance with the provisions of Section 43 respecting the giving of reasons for the removal is not open. No error appeared on certiorari in a District Court's affirmance under G.

L. (Ter. Ed.) c 31, Section 45, of a removal by the commissioner of public works of a "right of way agent" from his position where the return showed that there was evidence before the judge justifying him in finding that the commissioner had abolished the position as nonessential and that his doing so had not been without probable cause or in bad faith.

There is nothing in the statutes relating to civil service that prevents the abolition of classified positions for proper cause and in good faith, accompanied by a redistribution of duties.

PETITION for a writ of certiorari, filed in the Superior Court on July 8, 1942.

The case was heard by Spalding, J. G. A. McLaughlin, for the petitioner.

R. Clapp, Assistant Attorney General, (J.

E. Farley Assistant Attorney General, with him,) for the respondent.

QUA, J. This is a petition for a writ of certiorari to quash the decision of a judge of a District Court who, under G. L. (Ter. Ed.) c. 31 Section 45, as amended, had reviewed proceedings before the commissioner of public works wherein the petitioner had been ousted from the position of "right of way agent," an office or employment in the classified public service of the Commonwealth. The judge of the District Court, after hearing, made detailed findings and rulings set forth in his return, and "dismissed" the petition for review. Although the word "dismissed" was used, it is apparent from the return as a whole that the judge of the District Court intended to "affirm" the decision of the commissioner in accordance with the wording of the statute, and we treat his action, as the parties have treated it, as such affirmance.

In the Superior Court the petition for certiorari was dismissed, and the petitioner excepted to the order of dismissal.

The question before us is the same as that which was presented to the judge of the Superior Court, namely: whether it appears as matter of law from the face of the return of the judge of the District Court (the respondent in this petition for certiorari) that he ought to have reversed the decision of the commissioner and reinstated the petitioner in his position. Westport v. County Commissioners of Bristol, 246 Mass. 556 , 562. Selectmen of Wakefield v. Judge of First District Court of Eastern Middlesex, 262 Mass. 477 , 480. Miami Grove Inc. v. Licensing Board for Boston, 312 Mass. 318 , 324. And the decision of that question necessarily depends upon the exact nature of the duty which a judge of a District Court is required to perform when called upon to "review" the action of the removing officer or board. By the express terms of the statute the judge is required to "affirm the decision of the officer or board unless it shall appear that it was made without proper cause or in bad faith.

" Only those two issues are open on review.

The petitioner contends that the "notice of removal" did not comply with the requirement of G. L. (Ter. Ed.) c. 31, Section 43, that "reasons" be "specifically given him in writing within twenty-four hours after such removal . . .." The notice gave as the reason for removal "the abolishment of the said position as non-essential." The petitioner contends that this is the recital of a cause and not of reasons for removal. For the distinction between "cause" and "reasons" in the statute see McKenna v. White, 287 Mass. 495 . But whether there has been compliance with the requirement of Section 43 that reasons be specifically given in writing is not one of the two issues open upon review in the District Court under Section 45. Under that section nothing is open except

"proper cause" and "bad faith." When the petitioner adopted that procedure he took it with its statutory limitations. If he had desired to test the sufficiency of the specific statement of reasons he could have done so by a petition for a writ of mandamus for his reinstatement on the ground that the procedural requirements of Section 43 had not been complied with; but he could not enlarge the scope of review under Section 45 by raising that issue in the District Court on review. Peckham v. Mayor of Fall River, 253 Mass. 590. Lowry v. Commissioner of Agriculture, 302 Mass. 111 , 116. Daley v. District Court of Western Hampden, 304 Mass. 86 , 91-92. Parker v. District Court of East Norfolk, 309 Mass. 377 . The petitioner rightly concedes that the notice stated a "proper cause," and we do not mean to decide that it was not also sufficient as a specific statement of reasons.

The petitioner further contends, in substance, that as matter of law on the face of the return the judge of the District Court ought to have ruled that the commissioner could not in good faith reasonably find that the "proper cause" of "abolishment of the . . . [petitioner's] position" existed. This contention is based principally upon the argument that work of the kind performed by the petitioner necessarily continued to be performed by others after the petitioner was separated from the service. The duty of a judge of a District Court in reviewing under Section 45 the action of an officer in removing a person holding a classified position is defined in Murray v. Justices of the Municipal Court of the City of Boston, 233 Mass. 186 . On page 189 it is said that such a review is "a re-examination 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." See Costa v. District Court of Eastern Essex, 305 Mass. 85 , 86-87.

It appears from the return that there was evidence before the commissioner warranting the judge in concluding that the commissioner in the exercise of an unbiased and reasonable judgment could have found that the petitioner, who was a lawyer, had been appointed in December, 1935, to a new position in the department of public works called "right of way agent"; that at the same time there were appointed in the department an "assistant right of way agent" and no fewer than twenty-two "right of way negotiators"; that for about a year and a half "all of the legal work and of the negotiating, appraising and adjusting" were done...