Nelson v. Bd. of Engineers of Portland Fire Dep't

• Decision Date: 26 August 1909
• Citation: 75 A. 64,105 Me. 551
• Parties: NELSON v. BOARD OF ENGINEERS OF PORTLAND FIRE DEPARTMENT.
• Court: Maine Supreme Court

75 A. 64

105 Me. 551

NELSON

v. BOARD OF ENGINEERS OF PORTLAND FIRE DEPARTMENT.

Supreme Judicial Court of Maine.

Aug. 26, 1909.

(Official.)

Exceptions from Supreme Judicial Court, Cumberland County.

Petition of Franklin Nelson for writ of certiorari to the Board of Engineers of the Portland Fire Department. Defendants except to rulings of the presiding justice. Exceptions sustained, and petition dismissed.

Petition for certiorari brought in the Supreme Judicial Court, Cumberland county, praying that the board of engineers of the fire department of Portland be ordered to certify to said court "the record of their proceedings relative to the discharge" of the plaintiff "to the end that said record or so much thereof as is illegal may be quashed."

"The defendants filed an answer to the petition, and requested the court to rule that so much of said answer as was a copy of the record of said board of engineers and of the record of the committee on fire department of the city council of said city of Portland be held a good and sufficient answer to the petition." The presiding justice made a pro forma ruling denying the request, and the defendants excepted. It was also "stipulated and agreed that if the court find the petition good, and the portion of the defendants' answer which is a copy of the records of the board of fire engineers and of the committee on fire department of the city council is not a good and sufficient answer to the petition, or the court is of opinion that evidence aliunde the record is admissible upon the petition, the case shall be remanded for further hearing at nisi, otherwise, petition to be dismissed."

The notice given by the defendants to the plaintiff, and referred to in the opinion, omitting caption and signatures thereto, is as follows:

"You are hereby notified that there will be a meeting of the board of engineers of the fire department held at their rooms at the Central Fire Station in said Portland, on Thursday, the 21st day of May, A. D. 1908, at 7:30 o'clock in the evening, at which time they will act upon the question of your reraoval from the office or position you now hold as a permanent member of the fire department of said city of Portland, on the grounds of inefficiency and other cause, at which time you may be present and show cause, if any you have, why such removal should not be made. Said inefficiency consisting in your inability to perforin the duties of permanent fireman of said city of Portland, to wit, the duties of Lieutenant of Engine 5 and Chemical 1 Company of the Portland Fire Department, in that on Janmiry 6, A. D. 1908, you violated one of the general orders of the fire department of said city of Portland, by leaving the engine house without first reporting to the floorman on duty that you were to leave the house and where you were going; in that on said January 6th, you violated one of the general orders of said department by responding to a still alarm for a fire without any fire apparatus, in that on the 30th day of January, A. D. 1908, you violated one of the general orders of the fire department, by responding to a still alarm for a fire without reporting the fire to the acting chief of the fire department, who was then and there in your engine house; in that on said 30th day of January, you violated one of the general orders of said fire department by leaving the engine house without first reporting to the floorman on duty the fact that you were to leave the engine house and where you were going; in that you are generally inefficient, incompetent, and unskillful in the performance of your duties at fires; and of your general inability to perform the duties required of you by your said position."

Argued before WIIITEHOUSE, SAVAGE, SPEAR, and KING, JJ.

Michael T. O'Brien, for plaintiff.

Emery G. Wilson, for defendants.

KING, J. Petition for a writ of certiorari to quash the proceedings of the board of engineers of the fire department of the city of Portland relative to the removal of the petitioner as a permanent member of said fire department. The case is before the law court on exceptions by defendants to pro forma rulings of the presiding justice, together with a stipulation by the parties, and...