Walsh v. Justice of the Dist. Court of Springfield

• Decision Date: 29 June 1937
• Parties: WALSH v. JUSTICE OF THE DISTRICT COURT OF SPRINGFIELD. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

297 Mass. 472

9 N.E.2d 555

WALSH

v.JUSTICE OF THE DISTRICT COURT OF SPRINGFIELD. (two cases).

Supreme Judicial Court of Massachusetts, Hampden.

June 29, 1937.

Exceptions from Supreme Judicial Court, Hampden, Judge.

Proceedings by John J. Walsh to review his suspensions by one Downey, superintendent of public buildings of the city of Springfield, and to secure Walsh's reinstatement as a mason in the classified civil service of the city. To review decisions of the Honorable Robert C. Parker, justice of the district court of Springfield, Walsh filed petitions for certiorari, which were dismissed by a single justice, and petitioner brings exceptions.

Exceptions overruled.Charles V. Ryan, Jr., of Springfield, for John J. Walsh.

Donald M. Macaulay and James S. Bulkley, both of Springfield, for respondent.

RUGG, Chief Justice.

There are two petitions for writs of certiorari to review two proceedings brought by the same person in the District Court of Springfield under G.L.(Ter.Ed.) c. 31, § 45. Mayor of Medford v. Judge of First District Court, 249 Mass. 465, 468, 144 N.E. 397. The returns to these petitions were properly made by the judge of the court and not by the magistrate who presided over the proceedings. Commonwealth v. Winthrop, 10 Mass. 177;Farmington River Water Power Co. v. County Commissioners, 112 Mass. 206, 214.

1. The petitioner had employment as a mason in the classified civil service of the city of Springfield. He was under the protection of the civil service laws. He received on January 10, 1936, from one Downey, the superintendent of public buildings of the city of Springfield, a written notice of suspension from his employment as mason, to take effect at the end of that working day. The reason assigned for the suspension was lack of work. After a hearing upon the request of the petitioner, in conformity to G.L.(Ter.Ed.) c. 31, § 43, Downey confirmed the suspension. On January 30, 1936, the petitioner instituted the first of the proceedings as to which he has filed a petition for a writ of certiorari. That proceeding was brought in the District Court to review the action of Downey as to the suspension and to secure reinstatement of the petitioner in his employment. The petitioner was ‘temporarily reinstated as a mason’ by Downey to take effect as of February 3, 1936. A letter of notification to that effect was dated January 30, 1936. (The date stated in the letter was February 3, 1936, but the finding fixed February 4, 1936, as the date. No point has been made of this in argument. For convenience, we use the latter date.) A decision was rendered in this proceeding on April 28, 1936. It was found that the suspension was made in good faith but without proper cause. The act of Downey of January 28, 1936, confirming the suspension of the petitioner on January 10, 1936, was reversed. The petitioner was reinstated in his position as mason from January 10, 1936, the date of his suspension, to February 4, 1936, the date of his reinstatement by Downey.

The petitioner contends that the writ of certiorari ought to issue with respect to this proceeding on the ground that the subsidiary facts found required a finding of bad faith on the part of Downey as matter of law. Even if it be assumed, without so deciding, that this contention is sound, the writ ought not to issue. It is the general rule that certiorari will not issue in the absence of substantial injury or manifest injustice to the petitioner. Sears v. Mayor & Aldermen of Worcester, 180 Mass. 288, 62 N.E. 269;Whitney v. Judge of District Court, 271 Mass. 448, 459, 171 N.E. 648;Amero v. Board of Appeal of Gloucester, 283 Mass. 45, 52, 186 N.E. 61. Certiorari is an extraordinary writ and affords only a limited form of review. Swan v. Justices of Superior Court, 222 Mass. 542, 543, 544, 111 N.E. 386;Maher v. Commonwealth (Mass.) 197 N.E. 78. In somewhat analogous types of review, only parties aggrieved may be heard to object to an adverse decision and to invoke relief. See G.L.(Ter.Ed.) c. 185, § 15; c. 231, §§ 96, 97, 108, 113. In such cases the prevailing party is not aggrieved. Hayden v. Stone, 112 Mass. 346, 352.Langley v. Conlan, 212 Mass. 135, 140, 98 N.E. 1064, Ann.Cas.1913C, 421;Donovan v. Donovan, 223 Mass. 6, 7, 111 N.E. 607. The petitioner cannot rightly be held to have been prejudiced by the refusal to find that his suspension was caused by bad faith on the part of Downey, since there was an alternative finding that the suspension was without proper cause. That finding vitiated the suspension. A finding of bad faith would have entitled the petitioner to no further relief.

Whether the suspension was made in bad faith was a question of fact. The finding on that matter was adverse to the petitioner. Findings of fact are not open to review on a petition for a writ of certiorari, save in unusual cases, of which the case at bar is not one. Commissioner of Public Works of Quincy v. Judge of District Court, 258 Mass. 444, 155 N.E. 431;Bradley v. Board of Zoning Adjustment of Boston, 255 Mass. 160, 163, 150 N.E. 892;Blankenburg v. Commonwealth, 260 Mass. 369, 377, 157 N.E. 693.

2. After being reinstated by Downey on February 4, 1936, the petitioner continued to work in his position as mason until March 2, 1936, when he was again suspended. The reason assigned in the letter of notification was lack of work. A hearing was held before Downey at the request of the petitioner. G.L.(Ter.Ed.) c. 31, § 43. No transcript of the evidence at this hearingappears to have been made. On March 12, 1936, Downey affirmed his decision to suspend the petitioner. The second of the two proceedings now before us to review his suspension was commenced in the District Court of Springfield on March 17, 1936. At that hearing the burden of proof was on the petitioner to establish affirmatively by a fair preponderance of the evidence that in suspending him from his position Downey acted either in bad faith or without proper cause. If that burden was not sustained, it was the duty of the judge to affirm the suspension. Murray v. Justices of the Municipal Court, 233 Mass. 186, 188, 123 N.E. 682;McCabe v. Judge of District Court, 277 Mass. 55, 57, 177 N.E. 857. After hearing, it was found that the petitioner was suspended without bad faith and for proper cause and the suspension was affirmed. Several alleged errors of law in this proceeding are now relied upon as grounds for issuance of the writ of certiorari. Questions of fact are not now reviewable. Commissioner of Public Works of Quincy v. Judge of District Court, 258 Mass. 444, 445, 155 N.E. 431;Yunitz v. Chelsea, 270 Mass. 179, 182, 169 N.E. 792;Commissioner of Institutions of Boston v. Justices of the Municipal Court, 290 Mass. 460, 195 N.E. 783.

(a) There was no error in ruling that the second petitioner in the District Court was not in any way concerned with the first petition, and that each one was a separate proceeding in itself. This ruling means that each suspension must be examined separately to determine its validity. It was the equivalent of a ruling that the causes of action were not identical. This is apparent from an examination of the two proceedings. Such a question is ordinarily one of fact. Treating it as such, no error of law is disclosed on the record. Sandler v. Silk (Mass.) 198 N.E. 749;Boston v. White Fuel Corp. (Mass.) 1 N.E.(2d) 186. Certain facts may have been relevant to both proceedings, but identical decisions were not required in both proceedings. The two suspensions were separated by a period of more than a month. It cannot rightly be held as matter of law that a substantial change of conditions may not have arisen in this interval of time. The circumstance that the petitioner was reinstated ‘temporarily’ after the first suspension did not necessarily make the second suspension a continuation of the first. The petitioner was entitled to and was accorded the safeguards provided by G.L. (Ter.Ed.) c. 31, §§ 43, 45, as to both suspensions.

(b) It is urged that the record shows error in the admission of evidence. One question in the admission of evidence. District Court was whether there was a lack of work when the petitioner was suspended. The petitioner at the hearing in the District Court directed attention to several possible opportunities for the labor of a mason. One related to repairs on a public sanitary. ‘The explanation for not considering that work * * * was that the roof leaked and it would be unwise to repair the sanitary walls until the roof itself could be repaired.’ More favorable weather than that commonly prevailing in February or March was required. Objection was made and exception taken to the testimony in the District Court by Downey as to the reason for not repairing the sanitary, and to that of another witness as to why a coke bin was not built. It is urged that this was incompetent because this...