Quinn v. City of Concord

• Decision Date: 06 October 1967
• Citation: 233 A.2d 106,108 N.H. 242
• Parties: J. Herbert QUINN v. CITY OF CONCORD and Board of Aldermen.
• Court: New Hampshire Supreme Court

Page 106

233 A.2d 106

108 N.H. 242

J. Herbert QUINN v. CITY OF CONCORD and Board of Aldermen.

Supreme Court of New Hampshire.

Argued Sept. 8, 1967.

Decided Sept. 20, 1967.

Rehearing Denied Oct. 6, 1967.

Wyman, Bean & Tefft, Manchester (Arthour E. Bean, Jr., Manchester, orally), for City of Concord and Board of Aldermen.

Alfred J. Catalfo, Jr., Dover (by brief and orally), for J. Herbert quinn.

GRIFFITH, Justice.

J. Herbert Quinn was elected mayor of the city of Concord on January 10, 1966. On August 3, 1967 he was removed from office by the board of aldermen acting under the provisions of the city charter. On August 17, 1967 the Superior Court (Bownes, J.) set aside the action of the board of aldermen, on a petition for writ of certiorari, and reinstated J. Herbert Quinn as mayor. The present petitions to this court brought by the board of aldermen of the city of Concord request that the Supreme Court vacate the decision of the Superior Court and reinstate the decision of the board of aldermen.

The removal proceedings arose from certain actions of the mayor on June 28, 1967. On July 17, 1967 the board of aldermen appointed a subcommittee to investigate the incident of June 28. The subcommittee reported to the full board on July 20, at which time the board voted to supend the mayor on the charge of misconduct in offic pending a hearing scheduled for August 2, 1967. The Superior Court (Bownes, J.) vacated the supension order upon petition of mayor Quinn but the hearing of August 2 on the question of removal proceeded as scheduled.

The board of aldermen had dlivered to the mayor prior to the hearing by mail and in person a copy of the chages against him. Rules were established by the board of aldermen for the conduct of the hearing which was held on the evenings of August 2 and 3. The board of aldermen had the evidence relating to the charge presented by Arthur E. Bean, Jr. and the mayor was represented by Alfred J. Catalfo, Jr. At the conclusion of the hearing the board of aldermen, upon a motion duly made and seconded, found the mayor guilty of misconduct in office concerning the events of the evening of June 28 and removed him from office.

Mayor Quinn then brought a petition for writ of certiorari to the Merrimack County Superior Court and a hearing was held on this petition on August 15. The Court limited the hearing to two questions:

'1. Was Mayor Quinn given a fair hearing before the removal action was taken?

'2. Did the facts on which the charge of misconduct in office was based legally constitute a sufficient cause for removal of the Mayor from office?'

On August 17, 1967 the Court filed its decision in writing with findings of fact and rulings of law answering question No. 1 in the affirmative and question No. 2 in the negative. The correctness of these rulings is now before us together with a complete transcript of the hearings before the board of aldermen and the Merrimack County Superior Court.

The Concord city charter provides as follows: Laws 1957, 429:13.

'Removal of Mayor, Aldermen. The board of aldermen may, on specific charges and after due notice and hearing, at any time remove from office the mayor or one of its own members for prolonged absence from or other inattention to duty, mental or physical incapacity, incompetency, crime, immorality, or misconduct in office upon affirmative vote on roll call of at least ten aldermen. A vacancy occasioned by removal under this section shall be filled in the manner provided in section 10 of this charter.'

Counsel for J. Herbert Quinn charged that the hearing and removal were unfair in that certain of the aldermen were prejudiced and participants in a conspiracy to remove the mayor. Nine of the fourteen aldermen were examined by counsel for Quinn before the Superior Court and other witnesses were presented also to support this charge. The Trial Court found that no members of the board of aldermen were disqualified by reason of bias, prejudice, participation in a conspiracy, or pre-judgment of the charge from acting as members of the impeachment tribunal. The Court further found that the hearing was conducted fairly and that Mayor Quinn was given every opportunity to defend himself against the charges brought aginst him. A review of the evidence supports these findings and rulings of the Trial Court and they are sustained.

The Legislature in this charter provided the tribunal and precribed the standards for removal. It is clear from the evidence that these standards were followed; and that in the conduct of the hearing opportunity was fairly given to Mayor Quinn to know the charges against him, to have his own counsel cross-examine witnesses and to present evidence on his behalf to refute the charges.

In the present case the charter prescribes a tribunal whose members in every case will be acquainted with the parties and have some knowledge of the facts. In this respect, it differs from the ordinary approach of judge and jury. It has been generally held for example that aldermen are not disqualified from voting on charges because they served on a committee that formulated the charges. See 4 McQuillin, Municipal Corporations (3d ed.) s. 12.259; 62 C.J.S. Municipal Corporations, § 511, p. 953. Findings which result from an unfair hearing or a prejudiced tribunal will not be sustained. However, it must be recognized that in this case the Legislature intended removal proceedings to be conducted by the aldermen who may bring the charge and some of whom may have substantial knowledge of the evidence to be presented, or may have had differences from time to time with the person whose removal is sought.

The Trial Court correctly held that certiorari may not be invoked to review findings of fact and that the Court was limited to an inquiry of law whether the finding or verdict could reasonably be made. Carling Brewing Co. v. New Hampshire State Liquor Commission, 102 N.H. 284, 155 A.2d 808; Cloutier v. State Milk Control Board, 92 N.H. 199, 203, 28 A.2d 554; Opinion of the Justices, 98 N.H. 533, 536, 104 A.2d 195; Sinkevich v. Nashua, 97 N.H. 262, 265, 86 A.2d 562. Unless the evidence shows that the conclusion could not have been reasonably reached, the action taken will be held valid. LaBonte v. Berlin, 85 N.H. 89, 154 A. 89.

There was evidence to warrant the following findings by the board of aldermen relating to the incident of June 28. Mayor Quinn went to the Brick Tower Motel at about six-thirty P.M. on the 28th and inquired as to whether one James Langley was in the lounge. The mayor may or may not have personally...