Whitney v. Judge of District Court of Northern Berkshire

• Decision Date: 28 May 1930
• Citation: 271 Mass. 448
• Parties: ALBERT WHITNEY v. JUDGE OF THE DISTRICT COURT OF NORTHERN BERKSHIRE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

271 Mass. 448

ALBERT WHITNEY v. JUDGE OF THE DISTRICT COURT OF NORTHERN BERKSHIRE.

Supreme Judicial Court of Massachusetts, Berkshire.

May 28, 1930

September 17, 1929.

Present: RUGG, C.

J., PIERCE, WAIT & FIELD, JJ.

Certiorari. Practice, Civil, Certiorari proceedings: return.

District Court Review of removal under civil service. Civil Service. Police Officer, Removal.

It was not the legislative intent that the provisions of Section 42B, added to G.L.c. 31 by St. 1923, c. 242, Section 1, that the decision of a district court upon a petition by a police officer for a review of a decision removing, suspending transferring or lowering him in rank or compensation "shall be final and conclusive upon the parties," should deprive parties of the beneficent remedy afforded by the extraordinary writ of certiorari if there are substantial errors of law apparent on the record adversely affecting their material rights. Per RUGG, C.J.

The design of the civil service law is to free competent and upright public servants from arbitrary removal but not by the requirement of insubstantial formalities to shield the inefficient or unworthy from being separated from the public service. Per RUGG, C.J.

The chief of police of North Adams in a communication in writing to the mayor made twenty-two specific charges against a police officer alleging illicit traffic in intoxicating liquors, immoral conduct with women and violation of police rules. The mayor served upon the officer a communication showing by its heading that it was official, and stating as follows: "Dear Sir: I contemplate removing you from office as one of the Police Officers of the City of North Adams, Saturday,

October 13, 1928, at two o'clock in the afternoon for the following reasons. M.C., the officer in command of the Police Department in a letter to me of this date makes the following charges against you: [there followed the twenty-two specific charges contained in the communication from the chief of police]." The police officer did not attend at the office of the mayor at the date and hour stated in the letter. The mayor and chief of police together went over the charges.

Each personally had examined witnesses as to some of them. The chief of police was ready to produce witnesses to support the charges. He had personal knowledge as to many of the facts stated in his communication to the mayor. Thereafter the mayor informed the officer that he was removed from office. The officer then filed in the appropriate District

Court a petition for review under Section 42B, added to G.L.c. 31 by

St. 1923, c.

242, Section 1. At the hearing by the judge of the

District Court only the mayor and the chief of police testified. The judge found the foregoing facts; stated that although the notice given to the petitioner by the mayor was informal and "clearly should have stated that a hearing upon the charges filed would be held at a definite time and place," yet because that notice contained charges accusing him of twenty-two distinct and grave derelictions of duty, he must have realized the seriousness of the matter and that it was reasonable to infer that he knew from this notice that the mayor contemplated consideration of action upon these charges at his office at the city hall at the hour named in the notice; found that the removal was justified, and affirmed it. A petition for a writ of certiorari was ordered dismissed "as a matter of law and as a matter of discretion." The petitioner alleged exceptions. Held, that

(1) So far as the statements of the judge of the District Court relating to the notice given to the petitioner by the mayor were findings of fact, they were nor open to review;

(2) In the circumstances the inference was permissible that the petitioner had just cause to believe that at the time and place mentioned in the notice the mayor intended to do whatever was necessary as a prerequisite to his removal, provided a finding was made after hearing that the charges specified in the notice were sustained;

(3) The judge of the District Court made no erroneous ruling of law on the question of notice;

(4) It was not essential that the hearing before the mayor should be according to strict evidentiary procedure provided substantial justice was done;

(5) The petitioner had no genuine right to remain or to be reinstated as a police officer; and, in such circumstances, the judicial discretion of the single justice was rightly exercised in refusing to put forth the extraordinary power of the court in favor of the petitioner.

PETITION, filed in the Supreme Judicial Court for the county of Berkshire on February 13, 1929, for a writ of certiorari to quash proceedings before the judge of the District Court of Northern Berkshire upon a petition to review action by the mayor of North Adams in removing the petitioner as a police officer, to reverse an order by the judge affirming the action of the mayor, and to reverse the action of the mayor.

An order of notice was issued notifying "the respondent to appear before" the court "that he may then and there show cause, if any he has, why the prayer of said petition should not be granted."

In response to such order of notice, the respondent filed what he certified was "a true copy of the complete and extended record of" his court in the matter of the petition for review. Material facts appearing from such record were as follows: Previous to October 13, 1928, the petitioner was a police officer of North Adams under civil service. On October 9, 1928, Michael W. Conlon, chief of police of North Adams, filed with the mayor in writing twenty-two specific charges of dereliction of duty, which included charges of illicit traffic in intoxicating liquors both while on and while off duty, violation of police rules, and immoral relations with women. On the same day the mayor caused to be served upon the petitioner a letter, bearing the heading, "CITY OF NORTH ADAMS MASSACHUSETTS OFFICE OF THE MAYOR" and a representation of the seal of the city, and reading as follows: "Dear Sir: I contemplate removing you from office as one of the Police Officers of the City of North Adams, Saturday, October 13, 1928, at two o'clock in the afternoon for the following reasons. Michael Conlon, the officer in command of the Police Department in a letter to me of this date makes the following charges against you: [there followed the specifications of charges contained in the letter of the chief of police and described above]."

The extended record continues: "The respondent, Mayor Johnson, and Michael Conlon, the chief of police, were the only witnesses who testified and from their testimony the court finds the following facts:

"The respondent, as mayor of the city of North Adams, has an office at the city hall in North Adams and he arrived at this office on the afternoon of October 13, 1928, at about 1:55. Two or three moments later the chief of police, Michael Conlon, and the city solicitor, Mr. P.J. Ashe, arrived at the mayor's office. They remained there until about 2:20 P.M. The petitioner did not appear either in person or by counsel. No witnesses were present other than Chief Conlon. At 2:06 o'clock P.M., the mayor, the chief and city solicitor compared watches and found the time to be six minutes past two o'clock. The mayor then went into the city treasurer's office adjoining to verify the time and returning said `Well he isn't here. He's done,' referring to Mr. Whitney the petitioner. The city solicitor then said to Chief Conlon, `You and the mayor should go over these charges in a formal way.' Chief Conlon testified that he then said to the mayor, `I have talked these charges over with you several times before today. You have talked with some of the witnesses yourself. The first witness Gardner, is dead, but I find that I am able to present his testimony. I am ready to get my witnesses and prove these charges to be true in case Mr. Whitney should appear.' The mayor then said: `The evidence presented here warrants my discharging this man,' referring to the petitioner. These were all the proceedings at this meeting.

"The mayor and chief of police both testified to various conversations they had held together concerning these charges during approximately a month preceding the date of removal in which the chief had from time to time told the mayor information he had received from others concerning each of the several charges and gave him the source of his information and the names of the parties from whom he had received such information. During said period the mayor had personally interviewed some of the witnesses who had furnished information to the chief and they had corroborated the information previously given to the chief concerning the charges against the petitioner.

"The facts alleged in charge one were related to the chief by one Alonzo Gardner at the office of City Solicitor P.J. Ashe and reported by the chief to the Mayor. Alonzo Gardner died early in October, 1928, before October 13.

"The twelfth charge alleges violation of Section 4 of Rule 5 of the rules and regulations of the police department, which section is as follows: `4. Patrolmen must not walk together or talk with each other, or with any other persons on their route while on duty, unless it be to communicate information pertaining to the department or in the line of their duty, and such communication must be as brief as possible. They must not remain in one spot but constantly patrol their routes.' Chief Conlon testified that from his own observation he had knowledge of the violation of this rule on several occasions by the petitioner, and had so reported to the mayor.

"Mayor Johnson testified with reference to [certain] charges pertaining to sales of...