Swan v. Justices of Super. Court

• Citation: 222 Mass. 542
• Parties: RODOLPHUS A. SWAN v. JUSTICES OF THE SUPERIOR COURT, MAYOR OF NEW BEDFORD, intervenor.
• Decision Date: 09 February 1916
• Court: United States State Supreme Judicial Court of Massachusetts

222 Mass. 542

RODOLPHUS A. SWAN v. JUSTICES OF THE SUPERIOR COURT, MAYOR OF NEW BEDFORD, intervenor.

Supreme Judicial Court of Massachusetts, Bristol.

February 9, 1916

October 26, 1915.

Present: RUGG, C.

J., LORING, CROSBY PIERCE, & CARROLL, JJ.

Certiorari. Supreme Judicial Court.

Practice, Civil Memorandum of decision. Licensing Board. Words "Appeal," "Review.

"

The appropriate function of the writ of certiorari is to relieve aggrieved parties from the injustice arising from errors of law committed in proceedings affecting their justiciable rights when no other means of relief are open; and R.L.c. 156 Section 3, gives the Supreme Judicial

Court "general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly provided."

The provision of R.L.c. 100, Section 4, as amended by St. 1912, c. 389, that there shall be no appeal from the decision of a judge of the

Superior Court, upon a review of the charges made by the mayor of a city in removing a member of the licensing board of the city, affirming or revoking the order of the mayor removing such commissioner, does not take away the right of a removed license commissioner to maintain a petition for a writ of certiorari to correct errors of law alleged to be apparent on the record of the Superior Court in such proceeding.

On a petition for a writ of certiorari to review a decision of a judge of the Superior Court under R.L.c. 100, Section 4, as amended by St. 1912, c. 389, affirming an order of a mayor of a city removing a member of the licensing board of the city, where a paper entitled a "Memorandum" was filed by the judge stating the legal principles adopted by him for his own guidance and his findings of fact, a copy of which is included in the respondents' return to the petition, the rulings of law made by the judge as thus set forth are a part of the record and are to be considered upon the question of granting the writ.

A writ of certiorari will be granted in the sound discretion of the court only to correct errors of substance where it is apparent that manifest injustice has been done in relation to a substantial right of the petitioner. Upon the hearing by a judge of the Superior Court under R.L.c. 100, Section

4, as amended by St. 1912, c. 389, of an application for "a review of the charges" made by the mayor of a city against a member of the licensing board of the city in ordering his removal, the judge adopted for his guidance the following rule, which it appeared was the rule universally adopted in such cases by the judges of that court: "The court must, therefore, consider the questions here involved, bearing in mind that the finding of the mayor as to facts must stand if supported by reasonable evidence, and that it is not sufficient to overthrow such finding that the court might feel that a consideration of the evidence uncontrolled by the finding might lead to a different result." Held, that the proceeding in the Superior Court was made by the statute a review and not an appeal, and that in such a proceeding the rule, that the finding of the mayor as to facts must stand if supported by reasonable evidence, was correct.

On a petition for a writ of certiorari to review a decision of a judge of the Superior Court under R.L.c. 100, Section 4, as amended by St. 1912, c. 389, affirming an order of a mayor of a city removing a member of the licensing board of the city, where it appears that on a charge against the removed commissioner, which was upheld by the judge, a further specification ought to have been given before the hearing by the mayor, but this omission was made immaterial by the fact that full opportunity was afforded to meet the charge after the evidence in support of it had been heard, there was held to be no occasion to quash the proceedings for this reason.

In the same case it was said, that such a hearing before a mayor need not be conducted according to procedure in the courts if substantial justice is done.

J. W. Cummings, (C. R. Cummings with him,) for the petitioners.

H. E. Woodward, (R.

L. Theller with him,) for the intervenor.

RUGG, C.J. These are petitions for writs of certiorari directed to the justices of the Superior Court to correct errors of law alleged to be apparent upon its records in proceedings under R.L.c. 100, Section 4, as amended by St. 1912, c. 389 ^[*] relating to the review of removals of the petitioners as license commissioners of the city of New Bedford by the intervenor, Edward R. Hathaway, as mayor of that city. ^[**]

It is contended that the writ of certiorari does not lie. That contention is based upon the sentence in the statute to the effect that "there shall be no appeal from his [the Superior Court judge's] decision." Doubtless "the word `appeal' is used in a broad general sense," so as to cover all the ordinary proceedings for a revision by this court. Dow v. Casey, 194 Mass. 48 , 50. But the writ of certiorari is of extraordinary nature. It is one of the ancient prerogative writs, whose history stretches far back toward the beginnings of the common law. Its common purpose is the beneficent one of enabling a party who has no remedy by appeal, exception, or other mode of correcting errors of law committed against his rights in a proceeding judicial or quasi judicial, to bring the true record, properly extended so as to show the principles of the decision, before a higher court for examination as to material mistakes of law. Its appropriate function is to relieve aggrieved parties from the injustice arising from errors of law committed in proceedings affecting their justiciable rights when no other means of relief are open. It always has been recognized as a highly remedial salutary procedure, founded upon a sense of justice, to relieve against wrongs otherwise irremediable. That wrongs go unredressed because of a want of adequate methods would be a grave reproach to any system of jurisprudence. The writ of certiorari not only exists as a part of the common law, but it has been sedulously preserved by express statutes, which confer upon the Supreme Judicial Court a broad jurisdiction and superintendence of all courts of inferior jurisdiction "to correct and prevent errors and abuses therein if no other remedy is expressly provided." R.L.c. 156, Section 3; c. 192, Section 4.

It would require words unmistakable in import to express a legislative purpose to deprive parties to any appropriate proceeding from the shelter of this writ. The phrase of the instant statute falls far short of expressing that purpose. It simply indicates that there is to be no appeal in the sense in which that word is used in ordinary legal and equitable procedure, and that the removal of such an officer, which is in large part an administrative measure, is not to be stayed in its effect by the delays necessarily incident to the usual prosecutions of exceptions or appeals. But it does not disclose a purpose to prevent the exercise of the extraordinary power of this court to rectify errors which are so fundamental in character as to warrant the invocation of the writ of certiorari. The trend of legislation has been to broaden the powers of this court as to that writ rather than to narrow them. See St.

1902, c. 544, Section 27; Boston & Lowell Railroad v. County Commissioners, 198 Mass. 584 , 589. A provision that records as made or amended by a revising board "shall stand as the true records" has been held not to interfere with the exercise of the supervisory power of this court. Flanders v. Roberts, 182 Mass. 524 , 527. There is nothing in Dow v. Casey, 194 Mass. 48 , at essential variance with this conclusion. That decision had to do with a contention that exceptions could be prosecuted in proceedings under this statute as in the ordinary action at law. The general statement in that opinion, that the word "appeal" includes "all proceedings for a revision by a higher court," was used with reference to the facts then before the court, is to be interpreted in connection with that case and is not to be construed as announcing a proposition of universal application. Every opinion must be read in the light of the facts then presented. Statements of rules as applicable to that case cannot be taken out of their context and stretched to different circumstances not before the mind of the court. Cawley v. Jean, 218 Mass. 263 , 270. Carroll v. Carroll, 16 How. 275, 286. Pollock v. Farmers' Loan & Trust Co. 157 U.

S. 429, 574.

Quinn v. Leathem, [1901] A. C. 495, 506. The reason for this rule is plain. As was said by Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264, 399, "The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated."

The clause in the governing statute, that "there shall be no appeal" from the decision of the judge of the Superior Court, does not prohibit an aggrieved party from invoking the writ of certiorari in appropriate instances.

In a proceeding at common law a written statement filed by the judge as to the grounds of his ruling is no part of the record. Standish v. Old Colony Railroad, 129 Mass. 158 . Cressey v Cressey, 213 Mass. 191 . Cohen v. Berkowitz, 215 Mass. 68 , 71. But as was said by Gray, C. J., in Farmington River Water Power Co. v. County Commissioners, 112 Mass. 206 , at pages 213, 214, "If a question of law is raised at the hearing before an inferior court, whose proceedings are not according to the course of the common law and not the subject of appeal or exception,...