Sullivan v. Mun. Court of Roxbury Dist.

• Decision Date: 02 April 1948
• Citation: 322 Mass. 566,78 N.E.2d 618
• Parties: SULLIVAN v. MUNICIPAL COURT OF ROXBURY DIST.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

322 Mass. 566

78 N.E.2d 618

SULLIVAN

v.MUNICIPAL COURT OF ROXBURY DIST.

Supreme Judicial Court of Massachusetts, Suffolk.

April 2, 1948.

Exceptions from Superior Court, Suffolk County; Cabot, Judge.

Petition for writ of certiorari by Thomas D. Sullivan against Municipal Court of the Roxbury District to quash a decision of judge of respondent court wherein he found that action of the Police Commissioner of City of Boston discharging petitioner from police force of that city, after hearing upon two specifications of conduct unbecoming an officer, and action of Civil Service Commission affirming action of Police Commissioner were justified. Judgment was entered affirming proceedings before respondent court, and petitioner brings exceptions.

Exceptions overruled.

Before QUA, C. J., and LUMMUS, DOLAN, RONAN, and WILLIAMS, JJ.

P. L. Keenan and J. T. Bowes, both of Boston, for petitioner.

R. Clapp, Asst. Atty. Gen., and A. J. Gorey, of Boston, for respondent.

QUA, Chief Justice.

This petition for a writ of certiorari was brought in the Superior Court to quash a decision of the judge of the Municipal Court of the Roxbury District wherein he found that action of the police commission of Boston discharging the petitioner from the police force of that city, after a hearing upon two specifications of conduct unbecoming an officer, and action of the civil service commission affirming the action of the police commissioner were justified, and whereby the respondent affirmed such action. G.L.(Ter.Ed.) c. 31, § 43, as appearing in St.1945, c. 667, § 1 (see now St.1947, c. 373, § 1). G.L.(Ter.Ed.) c. 31, § 45, as appearing in St.1945, c. 667, § 2. The judge of the Superior Court ordered judgment affirming the proceedings before the respondent. G.L.(Ter.Ed.) c. 249, § 4, as amended by St.1943, c. 374, § 1. See G.L.(Ter.Ed.) c. 213, § 1A, as last amended by St.1941, c. 180. The case is here on exceptions to the refusal of the judge of the Superior Court to grant certain of the petitioner's requests for rulings.

General Laws (Ter.Ed.) c. 31, § 43(b), as appearing in St.1945, c. 667, § 1, provides that a person discharged by the appointing authority shall, if he so requests in writing, be given a hearing before a member of the civil service commission or some disinterested person designated by the chairman, who shall report his findings to the commission for action. The commission is to affirm the action of the appointing authority if it finds that such action was ‘justified.’ We interpret this as providing for a hearing de novo upon all material evidence and a decision by the commission upon that evidence and not merely for a review of the previous hearing held before the appointing officer. There is no limitation of the evidence to that which was before the appointing officer. The matter is still wholly in the administrative field. In this connection, we think that the word ‘justified’ has no peculiar or technical signification. But the petition to the District Court which may be brought after the decision of the commission is, by the wording of G.L.(Ter.Ed.) c. 31, § 45, as appearing in St.1945, c. 667, § 2, a petition for a review by the court of the action of the administrative officers to ‘determine whether or not upon all the evidence such action was justified.’ The scope under a statute of this type of a judicial review to determine whether the action of an administrative officer in discharging or removing an officer or employee in the classified service was ‘justified’ has been settled by a series of decisions. The difference between a review and ‘a retrial of the case as if it were unqualifiedly appealed from one court to another’ was pointed out in Mayor of Medford v. Judge of First District Court of Eastern Middlesex, 249 Mass. 465, at pages 470, 471, 144 N.E. 397, at page 398, and in Selectmen of Wakefield v. Judge of First District Court of Eastern Middlesex, 262 Mass. 477, 482, 160 N.E. 427. ‘Review’ indicates ‘a reexamination 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. It does not import a reversal of the earlier decision honestly made upon evidence which appears to an unprejudiced mind sufficient to warrant the decision made although of a character respecting the weight of which two impartial minds might well reach different conclusions, and upon which the reviewing magistrate, if trying the whole issue afresh, might make a different finding.’ Murray v. Justices of the Municipal Court of the City of Boston, 233 Mass. 186, 189, 123 N.E. 682, 683;Mayor of Somerville v. District Court of Somerville, 317 Mass. 106, 109, 57 N.E.2d 1;Board of Public Works of Arlington v. Third District Court of Eastern Middlesex, 319 Mass. 638, 67 N.E.2d 232, and cases cited. ‘Justified’ in connection with ‘review’ 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.’ Selectmen of Wakefield v. Judge of First District Court of Eastern Middlesex, 262 Mass. 477, 482, 160 N.E. 427, 430;Costa v. District Court of Eastern Essex, 305 Mass. 85, 25 N.E.2d 172.

The respondent's return to the Superior Court includes transcripts of the evidence before the police commissioner, the evidence both the civil service commissioners, both of which transcripts were put in evidence before the respondent, and also of the evidence taken before the respondent himself. By virtue of G.L.(Ter.Ed.) c. 249, § 4, as amended by St.1943, c. 374, § 1, it was ‘open to the petitioner to contend at the hearing upon the petition [for certiorari] that the evidence which formed the basis of the action complained of or the basis of any specified finding or conclusion was as matter of law insufficient to warrant such action, finding or conclusion.’ It was therefore proper for the respondent to include this evidence in his return, whether or not such inclusion would have been proper before the amendment of 1943. Tracht v. County Commissioners of Worcester, 318 Mass. 681, 687, 63 N.E.2d 561. See Common Law Rule 34, 317 Mass. 774. Compare Murphy v. Third District Court of Eastern Middlesex, 316 Mass. 663, 667, 56 N.E.2d 467.

The evidence before the police commissioner tended to show these facts: Some time before April 27, 1946, the officers of Division 16 had been notified at roll call that an automobile bearing a certain number was ‘suspected of going around on robberies and larcenies from the person.’ About 1:40 o'clock on the morning of that day a report came in from one Ranger that his wallet had been stolen on Arlington Street near Boylston Street. At about 2:20 that morning Officer Dyer of Division 16 saw the suspected automobile stop at a Chinese restaurant on Boyleston Street, known as the ‘Green Pagoda.’ Three men got out and went into the restaurant. Ranger's wallet and another wallet were found by police in the automobile. Thereupon the three men were arrested in the restaurant by officers of Division 161 and were taken to Station 16 in the patrol wagon. One of the men was one Rollins, who had stolen Ranger's wallet. One was MacEachern, who owned the automobile. The third man was the petitioner, who was attached to Division 19 but was off duty at the time. When arrested, after a few questions had been asked, the three men were ‘frisked’ and a blackjack not supplied to him by the department was found in the petitioner's pocket. To carry this was a violation of a rule of the department. When asked what he was doing with it, the petitioner for the first time disclosed that he was a police officer. When the patrol wagon reached the station two additional wallets were found in it near the place where the petitioner had sat. The petitioner said he had known the other two men for about a year. The petitioner's own story was that he slept until about eleven o'clock on the night of the twenty- sixth and then got up and stayed around the corner of Dudley and Warren streets near his home talking with different people until nearly two o'clock of the twenty-seventh, when MacEachern came along in his automobile and invited the petitioner to go and eat. Rollins came toward them, and all three rode to the ‘Green Pagoda.’ The petitioner testified that he was not intimate with these men but had seen them...