Selectmen of Wakefield v. Judge of First Dist. Court of Eastern Middlesex

• Decision Date: 05 March 1928
• Citation: 160 N.E. 427,262 Mass. 477
• Parties: SELECTMEN OF WAKEFIELD et al. v. JUDGE OF FIRST DISTRICT COURT OF EASTERN MIDDLESEX.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

262 Mass. 477

160 N.E. 427

SELECTMEN OF WAKEFIELD et al.

v.JUDGE OF FIRST DISTRICT COURT OF EASTERN MIDDLESEX.

Supreme Judicial Court of Massachusetts, Middlesex.

March 5, 1928.

Appeal from Supreme Judicial Court, Middlesex County.

Petition by the Selectmen of Wakefield, J. Theodore Whitney, and others for writ of certiorari, to be directed to the Judge of the First District Court of Eastern Middlesex, to set aside a decision rendered by respondent on a petition for review, in which the death of the original respondent was suggested and the present respondent substituted. The case was heard by a single justice, who sustained a demurrer to the petition for certiorari, and petitioners bring exceptions. Exceptions overruled.M. E. S. Clemons and R. P. Clemons, both of Boston, for petitioners.

G. M. Poland and F. H. Davis, both of Boston, for respondent.

RUGG, C. J.

This is a petition for a writ of certiorari. Its object is to set aside a decision rendered by the respondent upon a petition for review under section 42b, added to G. L. c. 31, by St. 1923, c. 242, § 1, whereby the action of the selectmen of the town of Wakefield in removing a police officer of that town from the police force was set aside. The return of the respondent sets forth the extended record of the petition for review. It there appears that at the hearing upon said petition:

‘Both parties introduced the testimony of witnesses, and by agreement of counsel the stenographic record of the testimony given at the hearing before the Board of Selectmen on the charges * * * was submitted to the court and was considered with the other evidence in the case.’

The finding of the judge was in these words:

‘This court has reviewed the action of said board as above set forth, has heard all the witnesses, and, by agreement of counsel has read the stenographer's report of said hearing before said board and determines, upon all the evidence, that the action of said board in finding the petitioner guilty of’ several specified charges made in writing, and ‘in the removal of the petitioner as a police officer of the town of Wakefield, was not justified; that the decision at said hearing be and hereby is reversed and the petitioner * * * be reinstated in his office of police officer of the town of Wakefield, without loss of compensation.’

By way of further answer, the respondent alleged in his return that the copy of the testimony given before the selectmen at the hearing on the written charges annexed to the petition was no part of the present record and was improperly included in the petition.

The petition ought not to have included as an exhibit transcript of the evidence taken at the hearing before the selectmen. The function of a writ of certiorari is to bring to the supervising court the true record of the inferior tribunal properly extended in order that errors of law may be considered. The writ can issue only to correct errors of law apparent on the face of the record when properly extended. Questions of fact are not subject to review. Matters purely evidentiary in nature have no proper place in a petition for a writ of certiorari. Mayor of Medford v. Judge of District Court of Eastern Middlesex, 249 Mass. 465, 468, 144 N. E. 397 and cases there collected. Filoon v. City Council of Brockton, 252 Mass. 218, 223, 147 N. E. 670;Commissioner of Public Works of Quincy v. Judge of District Court of East Norfolk, 258 Mass. 444, 155 N. E. 431;Blankenburg v. Commonwealth, 260 Mass. 369, 157 N. E. 693, and cases there collected. It is only in the extremely narrow class of cases where the respondent sets up extraneous facts to show that justice does not require the issuance of the writ, that there can be a hearing upon facts before the single justice. Ward v. Aldermen of Newton, 181 Mass. 432, 63 N. E. 1064;Byfield v. Newton, 247 Mass. 46, 53, 141 N. E. 658;Bradley v. Board of Zoning Adjustment, 255 Mass. 160, 171, 150 N. E. 892.

Besides making a return of a true record of all his proceedings on the petition for review, extended so as to show the principles followed in making his decision, the respondent also filed a demurrer. This was permissible practice. Worcester & Nashua Railroad v. Railroad Commissioners, 118 Mass. 561, 564;Marcus v. Commissioner of Public Safety, 255 Mass. 5, 8, 150 N. E. 903.

The case was heard on the demurrer by a single justice, who entered an order sustaining the demurrer on the grounds that there was no error of law apparent on the record and that no question of law was raised by the refusal of the respondent to rule that there was sufficient evidence before the selectmen, if believed by them, to support their findings and order for removal. Exception to that order brings the case here. Channell v. Judge of Central District Court of Northern Essex, 213 Mass. 78, 99 N. E. 769. This constitutes the first bill of exceptions.

The statute respecting review by a judge of a district court of the removal by an executive officer or board of a police officer holding an office classified under the civil service rules, in any city except Boston or in any town, is now St. 1923, c. 242, § 1, as amended by St. 1925, c. 220, § 2. It there is provided by that part of said section 1 designated section 42b that, upon petition brought by the police officer who has been removed, the judge of the district court ‘shall review such action’ of the officer or board making the removal, ‘hear any or all of the witnesses and determine whether or not upon all the evidence such action was justified. If the court finds that such action was justified, the decision at the hearing shall be affirmed; otherwise it shall be reversed and the petitioner shall be reinstated in his office without loss of compensation. The decision of the court shall be final and conclusive upon the parties.’ The jurisdiction thus conferred is purely statutory. It does not exist at common law. Barnes v. Mayor of Chicopee, 213 Mass. 1, 99 N. E. 464;Driscoll v. Mayor of Somerville, 213 Mass. 493, 100 N. E. 640. The words of the enabling statute, therefore, constitute the rule by which judges of district courts must be guided in exercising the powers imposed. The requirement still is as heretofore to ‘review’ the action of the removing officer or board as that word has been defined in earlier decisions. The matter is not to be tried anew as if it were an appeal. Swan v. Justices of Superior Court, 222 Mass. 542, 547, 548, 111 N. E. 386;Mayor of Medford v. Judge of First District Court of Eastern Middlesex, 249 Mass. 465, 471, 144 N. E. 397. The words of said section 42b, already quoted, mean that the question to be decided in each case is whether the entire action of the removing officer or board and not some part of such action ‘was justified.’ In this connection ‘justified’ means done upon adequate reasons sufficiently supported by credible evidence, when weighed by an unprejudiced mind guided by common sense and by correct rules of law. The action of the officer or board making the removal can stand under these stautory words only after an affirmative finding by the court in the exercise of sound judicial judgment upon all the evidence that such action ‘was justified.’ This imports that the preponderance of proof on all the evidence must support the conclusion that such action ‘was justified.’ The greater amount of credible evidence must in the mind of the judge be to the effect that such action ‘was justified,’ in order that he may make the necessary finding. If the court is unable to make such affirmative finding, that is, if on all the evidence his mind is in an even balance or inclines to the view that such action was not justified, then the decision under review must be reversed. The review must be conducted...