Whitney v. Judges of the Dist. Court of Northern Berkshire

• Decision Date: 29 May 1930
• Citation: 171 N.E. 648,271 Mass. 448
• Parties: WHITNEY v. JUDGES OF THE DISTRICT COURT OF NORTHERN BERKSHIRE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

271 Mass. 448

171 N.E. 648

WHITNEY

v.JUDGES OF THE DISTRICT COURT OF NORTHERN BERKSHIRE.

Supreme Judicial Court of Massachusetts, Berkshire.

May 29, 1930.

Exceptions from Supreme Judicial Court, Berkshire County; Sanderson, Judge.

Petition by Albert Whitney for a writ of certiorari to quash the proceedings of Carlton T. Phelps, Justice of the District Court of Northern Berkshire, on a petition to review the action of William Johnson, Mayor of the city of North Adams, in removing petitioner as a police officer. The petition was dismissed, and petitioner brings exceptions.

Exceptions overruled.

E. D. Getman and M. E. Couch, both of North Adams, for petitioner.

P. J. Ashe and W. F. Barrington, both of North Adams, for defendant.

RUGG, C. J.

This is a petition for a writ of certiorari to quash the proceedings of the respondent taken by him upon a petition against William Johnson, mayor of the city of North Adams, whereby there was sought review of the action by the said mayor in removing the petitioner as a police officer of the city of North Adams, and his reinstatement as such police officer. The return of the respondent sets out a copy of that petition for review as amended, and all proceedings thereon. The return must be taken to set out an accurate record of the proceedings and to be true and conclusive as to all matters of fact within the jurisdiction of the respondent. It is not open to contradiction. Westport v. County Commissioners, 246 Mass. 556, 562, 141 N. E. 591. It thus appears that charges had been preferred to the mayor against the petitioner by his superior officer, and that on October 9, 1928, the mayor notified the petitionerin writing that he contemplated removing him from office as one of the police officers of the city of North Adams on Saturday, October 13, 1928, at two o'clock in the afternoon, specifying at the same time in detail twenty-two charges made against him. This notification bearing the heading ‘City of North Adams Massachusetts Office of the Mayor’ was served by a deputy sheriff and with copy of the sheriff's return was filed with the city clerk. The petitioner did not appear either personally or by counsel before the mayor on October 13, 1928, or at any other time. The mayor later on that day removed him from office and sent to the petitioner written notice that the charges stated in the letter of October 9 had been found to be sustained and that for those reasons he had been removed. The mayor also caused to be filed with the city clerk a signed statement in the same effect. Seasonably thereafter the petitioner brought his petition for review in the district court for northern Berkshire. After hearing upon such petition for review the respondent filed a decision in which, after a considerable recital of facts found, he stated his final decision in these words: ‘The evidence shows there was information furnished the Mayor from sources which he considered reliable, which amply justified his finding the charges sustained to such an extent as to warrant the removal of the petitioner, and the petitioner's failure to appear in his own defense warrants inferences unfavorable to his interests. I therefore find that the action of removal complained of was justified and is hereby affirmed.’

It is provided by G. L. c. 31, § 45, as amended by St. 1925, c. 220, § 3, that upon such petition for review the ‘decision of the court shall be final and conclusive upon the parties.’ Nevertheless it was not the legislative intent thereby to 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. McLaughlin v. Mayor of Cambridge, 253 Mass. 193, 199, 200, 148 N. E. 458, and cases there cited.

The function of a writ of certiorari is to annul proceedingsof a judicial or quasi judicial tribunal not otherwise reviewable which show on their face a defect as matter of law so substantial in nature as to make it manifest that justice requires the writ to issue in order to prevent a material wrong. It does not issue on account of formal or technical errors or those which have not resulted in manifest injustice to the petitioner or which have not adversely affected the real interests of the general public. Swan v. Justices of Superior Court, 222 Mass. 542, 546, 111 N. E. 386;Mayor of Medford v. Judge of District Court, 249 Mass. 465, 468, 144 N. E. 397;Roman Catholic Archbishop of Boston v. Board of Appeal of Building Department of Boston (Mass.) 167 N. E. 672. The writ does not issue as matter of right but rests in sound judicial discretion. It will not be granted unless the petitioner demonstrates that substantial justice requires it even though defects of some comparatively inconsequential nature may appear on the record. Sears v. Mayor & Aldermen of Worcester, 180 Mass. 288, 62 N. E. 269, and cases cited; Corcoran v. Aldermen of Cambridge, 199 Mass. 5, 14, 85 N. E. 155,18 L. R. A. (N. S.) 187.

It is apparent from the decision filed by the respondent that he undertook scrupulously to follow the principles of law laid down in Selectmen of Wakefield v. Judge of District Court, 262 Mass. 477, 481, 482, 483, 160 N. E. 427. Those principles need not be restated. On that petition it was the duty of the respondent to examine the action of the mayor, hear any or all of the witnesses, and determine whether upon the evidence presented to him the action of the mayor in removing the petitioner was justified. Section 42B, added to G. L. c. 31, by the latter part of section 1, c. 242 of St. 1923.

The first contention of the petitioner is that the proceedings should be quashed for the reason that the respondent ought to have ruled that there was no compliance by the mayor with the statutory requirement that the petitioner as police officer could not be removed ‘except after a full hearing of which he shall have at least seventy-two hours' written notice.’ Section 42A as added in amended form to G. L. c. 31 by St. 1925, c. 220, § 2. He complains especially of the ruling of the respondent 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. So far as this was a finding of fact, of course it is not open to review. We cannot say that it contains any erroneous ruling of law. Under the statute as at present phrased the petitioner could not be removed except after hearing preceded by a notice with statement of reasons. The notice in question indubitably was...