Sinkevich v. Nashua Police Commission

• Decision Date: 02 January 1952
• Citation: 97 N.H. 262,86 A.2d 562
• Parties: SINKEVICH v. NASHUA POLICE COMMISSION.
• Court: New Hampshire Supreme Court

Page 562

86 A.2d 562

97 N.H. 262

SINKEVICH v. NASHUA POLICE COMMISSION.

Supreme Court of New Hampshire.

Jan. 2, 1952.

On Rehearing Feb. 5, 1952.

Second Motion for Rehearing Denied March 4, 1952.

Petition, for a writ of certiorari seeking a reinstatement of the plaintiff as a police officer. After notice, the preferment of charges and a hearing the defendant removed and dismissed the plaintiff as a police officer of the City of Nashua as of November 16, 1950. The order reads as follows: 'For the following causes, each of which is found to be true, and each of which, in the opinion of the Commission, is a sufficient ground for removal and dismissal independent of the others: (a) Because he knowingly, falsely represented in his application for membership on the Nashua Police Force that he never had been arrested, (b) Because prior to his appointment to the force he had been convicted of a crime and was therefore never eligible for a position on the Police Force, and (c) Because he is physically incapacitated to carry out the duties of a police officer.'

Under the ordinances of the City of Nashua and the rules of the police commission, the police officers serve during good behavior and while competent to discharge the duties of the office. Removal may be for just cause and after due hearing and no appointments shall be made of those convicted of a crime.

The plaintiff was arrested and convicted in Massachusetts on a charge involving death resulting from the plaintiff's operation of a motor vehicle in 1925. The plaintiff is partially incapacitated for the full duties of a police officer by reason of an injury received in the line of his duties.

The Trial Court ruled that the defendant had committed errors of law as to the three causes for dismissal and ordered the plaintiff reinstated as a police officer of the City of Nashua as of November 16, 1950. Defendant's exceptions to the order were reserved and transferred by Goodnow, C. J. Other facts appear in the opinion.

Robert J. Doyle, Nashua, for plaintiff.

Louis M. Janelle, City Sol., Nashua, for defendant.

KENISON, Justice.

Police commissions in this state have broad control of the administration of their departments including the appointment and removal of their employees. Laws 1913, c. 148. Pollard v. Gregg, 77 N.H. 190, 90 A. 176; Baker v. Barry, 77 N.H. 198, 90 A. 180; Baker v. Nashua, 77 N.H. 347, 91 A. 872. Although there is no statutory review of the decisions of police commissions in the suspension and removal of its police officers, it has become settled law that certiorari 'is a proper and well-established remedy for unlawful removal from office.' LaBonte v. Berlin, 85 N.H. 89, 92, 154 A. 89, 91. The remedy as developed here is not as restricted as it existed under common law but has allowed 'some expansion of the conventional scope of the writ [of certiorari].' Goodwin v. Nashua, 91 N.H. 339, 340, 18 A.2d 825, 826. The present scope of the remedy was summarized in Cloutier v. State Milk Control Board, 92 N.H. 199, 203, 28 A.2d 554, 557: 'Certiorari may not be invoked to review issues of fact, except upon the inquiry of law whether the finding or verdict could reasonably be made. * * * Whether the fact finding tribunal has acted illegally in respect to jurisdiction, authority or observance of the law, is the scope of inquiry which the proceeding may cover.'

The findings and ruling relative to the first cause for removal are set forth in detail in the reserved case: 'As to cause (a) the plaintiff testified in substance that at the time he was filling out his application for membership on the Police Force he asked the then Chief of Police whether the question, 'Have you ever been arrested?' included arrests anywhere or only in New Hampshire; that the Chief represented that it included only arrests in New Hampshire and that he answered, 'No' to this question because he had never been arrested in New Hampshire. The testimony of Chief Stearns was not presented either at the hearing before the Police Commissioners nor before this Court. The Court does not know what findings of fact the Police Commissioners made as to the plaintiff's conversation with the Chief. That is, it does not know whether the Commissioners disbelieved the plaintiff's testimony, and therefore found that the plaintiff, 'knowingly, falsely represented--that he never had been arrested,' or whether they believed the plaintiff's testimony but ruled in spite of it that his answer was a case of false representation knowingly made which was a sufficient cause for dismissal. The Court therefore deems it necessary to find facts on that point itself. The Court finds that the Chief did inform the plaintiff that the question applied only to arrests in New Hampshire. On the basis of this finding of fact the Court rules as a matter of law that the Police Commissioners could not find that the plaintiff, 'Knowingly, falsely represented--that he never had been arrested.''...