304 Mass. 86 | Mass. | 1939
The petitioner was removed from the position of chief of police of Westfield by the police commission of that city after a hearing on thirty-five charges of alleged misconduct preferred by the commission. He seasonably filed a petition in the District Court for a review of the action of the commission in removing him. G. L. (Ter. Ed.) c. 31, § 42B. The commission found him guilty on all the charges. The judge in the District Court found that as to thirty-four of the charges the action of the commission was not justified. He found, however, that the action of the commission was justified as to one charge — of conduct unbecoming an officer on a single occasion.
The petitioner has brought a petition for a writ of certiorari to obtain a review of the decision of the judge in the District Court and his reinstatement as chief of police. A single justice of this court dismissed the petition. The case is here on exceptions to the refusal of the single justice to give certain requests of the petitioner for rulings of law. The substance of these requests for rulings may be stated as follows: (1) that as matter of law the power to remove the petitioner was vested in the mayor of Westfield with the approval of "the city council and not in the police commission; (2) that the petitioner was not lawfully removed in accordance with the provisions of G. L. (Ter. Ed.) c. 31, § 42A; (3) that as matter of law the act of the police commission in refusing to grant the petitioner a continuance of the hearing before it, because of his inability to be present on account of illness, was erroneous and prejudicial to the petitioner; and (4) that as matter of law the evidence submitted in support of the only charge sustained by the judge in the District Court, even if believed, did not justify the removal of the petitioner.
1. The petitioner contends that the police commission was not vested with the power to remove him as chief of police.
The city of Westfield was incorporated by St. 1920, c. 294. Section 5 of said c. 294 provides that “All heads of departments and members of municipal boards” (with exceptions not here material) “shall be appointed by the mayor except as otherwise provided herein, subject to confirmation by the city council,” and § 7 provides that “The mayor may, with the approval of a majority of the members of the city council, remove any head of a department or member of a board,” with certain exceptions here immaterial. The power given by the city charter, in the sections above quoted, to appoint and to remove officers of the city, is in terms limited to the appointment and removal of heads of departments and members of municipal boards. It is the contention of the petitioner that as chief of police he was the head of a department of the city and therefore removable only by the mayor with the approval of the city coun
The city charter vested the legislative powers of the city in the city council (St. 1920, c. 294, § 4), and in § 17 further provided, with exceptions not here material, that “the legislative powers of the city council may be exercised as provided by ordinance or rule adopted by it.” The city council in 1921 made provision for the exercise of certain of its legislative powers by the adoption of an ordinance entitled “An ordinance• relating to the Police Department.” This ordinance among other things provided: “The police department of the City of Westfield shall consist of the aforesaid police commission, chief of police, captain, sergeant and such number of police officers as the council may deem necessary . . . and all appointments as police officers . . . shall be made by the Police Commission subject to the provisions of Chapter 31 of the General Laws. . . . The Chief of Police shall from time to time make rules and regulations for the government, disposition and management of the police department. . . . Such commission may for cause, after due hearing and except as provided in Chapter 31 of the General Laws punish any . . . police officer for insubordination, breach of the rules of the department or neglect of duty by fine, reprimand, suspension with or without loss of pay, or discharge.” A set of rules issued by the chief of police in accordance with the ordinance contained the provision: “The Chief of Police shall be subject to the ordi
The judge of the District Court rightly ruled that the city council, in the exercise of its legislative powers, by the enactment of the ordinance delegated the power of appointment and removal of all police officers, including the chief of police, to the police commission.
2. The petitioner contends that the police commission in removing him from office did not comply with the requirements of the applicable civil service statute, G. L. (Ter. Ed.) c. 31, § 42A. The statute provides that a police officer “shall not be removed, nor . . . suspended or . . . transferred ... nor . . . lowered in rank or compensation, nor shall his office be abolished, except after a full hearing of which he shall have at least seventy-two hours’ written notice, with a statement of the reasons for the contemplated removal, suspension, transfer, lowering in rank or compensation, or abolition of office, and except upon a written order stating fully and specifically the causes therefor made after a hearing . . . and signed by the board or officer before whom the hearing is held.” The statute further provides that such “police officer shall be notified in writing, within three days after the hearing, of the decision at such hearing.”
One contention of the petitioner is that because the written notice of the' contemplated hearing to be given him described it as “a hearing ... on your suspension” and not as a hearing on his “removal,” the police commission could not properly order his removal. The statute enumerates several possible actions affecting a police officer that a board, before whom a hearing is held under § 42A, may take. These actions are: removal, suspension, transfer, lowering in rank or compensation, and abolition of the office held. They differ in character and in their consequence to a police officer. Suspension is quite a different thing from removal, and a transfer quite unlike the abolition of an office. Observance of the statutory prerequisite to a hearing, that a police officer shall be given in the notice of hearing the reasons for any action or actions contemplated by
When, after the hearing, the petitioner received a copy of the order of the board and learned that he had been removed (although the notice of the hearing had stated suspension as the only action contemplated), he was not obliged to seek relief through a petition for review in the District Court under § 42B. The issue on such a petition would be: "whether or not upon all the evidence such action was justified.” Irrespective of a decision of that question the petitioner was entitled to assert his right that, after notice of a hearing, only on the matter of his suspension, no other more harmful action should be taken against him by the board than the action of suspension. This right he could have asserted by a petition for writ of mandamus. See Peckham v. Mayor of Fall River, 253 Mass. 590, 592; Bois v. Mayor of Fall River, 257 Mass. 471; Nevins v. Board of Public Welfare of Everett, 301 Mass. 502, 504; Lowry v. Commissioner of Agriculture, 302 Mass. 111, 115.
The petitioner did not bring such a petition and thus attack the sufficiency of the notice of hearing given to him. On the contrary he filed a petition under § 42B for a judicial review of the action of the commission in removing him. Section 42B is an available remedy only when there has been a proper hearing in accordance with the requirements
We think there was here such a waiver by the petitioner. The deficiency in the notice first appeared when the commissioners notified the petitioner that he had been removed. He could then, if he had so desired, by a petition for writ of mandamus have secured reinstatement in office because of insufficiency of the notice. His removal could then be sought by the commissioners only by starting a new proceeding under § 42A with a proper notice and hearing. The petitioner did not choose that course. He adopted the alternative course of a petition under § 42B for a judicial review in the District Court of the action of the commission. Such a review is available only where there has been a hearing before the commission in accordance with the fundamental requirement of § 42A that notice of a contemplated removal is a necessary basis for an order of removal. We think it must be held that when the petitioner, instead of bringing a petition for writ of mandamus based on insufficiency of the notice, as he might have done, sought a judicial review of the action of the commission he thereby admitted that there had been such a hearing before the commission as to entitle him to a review, and that he thereby waived the deficiency in the notice.
The petitioner further contends that there was not compliance with the requirements of the applicable civil service statute that the written notice of the hearing should contain a statement of the reasons for the contemplated removal, and that the written order of removal should state fully and specifically the causes for the removal. The notice
The order of removal stated that, at the hearing on December 5, “on charges of neglect of duty, of conduct unbecoming an officer and for acts contrary to the good order or discipline of the service and for insubordination, as more fully set forth in notice to you of hearing, dated November 23, 1936, the said Commissioners find you guilty of the charges as preferred, and remove you from office as Chief of Police . . . .” The notice referred to in the order contained the date of each of the offences charged. We think that the order of removal complied with the statutory requirement of a statement of the causes of the removal, and the reviewing judge so ruled. Whitney v. Judge of the District Court of Northern Berkshire, 271 Mass. 448. See McKenna v. White, 287 Mass. 495, 498.
It is urged by the petitioner that there was not compliance with the requirement of the applicable statute that the “police officer shall be notified in writing, within three days after the hearing, of the decision at such hearing.” G. L. (Ter. Ed.) c. 31, § 42A. Immediately after the hearing on December 5 the written order above described, addressed to the petitioner, was drawn up and signed by the
3. The petitioner contends that as matter of law the refusal of the police commission to grant a continuance of the hearing on December 5 was error. The petitioner appeared before the commission on November 28, the day set for a hearing in the notice given him, and asked and was granted a continuance until December 5. He left the city and the State on December 1 without notifying the commission. Before leaving he employed counsel. No request for specifications as to the charges or for a further continuance was made by the petitioner or his counsel in the period between November 28 and December 5. The commission with witnesses met on that day at the time and place designated. The petitioner, however, was not present. Counsel other than the counsel first employed by the petitioner appeared on his behalf and asked for a further continuance. He stated that he had been employed that day to represent the petitioner after the counsel first employed had withdrawn, that the petitioner was in Goshen in the State of New York where he had gone on December 1 for medical treatment, and that a statement of a physician in Goshen indicating that the condition of the petitioner was such that he could not attend the hearing was expected but had not been received. The request of counsel for a continuance was denied. He was given an opportunity
It was an implied condition of the exercise of the power of removal, vested under the charter and the ordinance in the police commission, that the hearing in the matter of the petitioner’s removal from office should be fairly conducted. Mayor of Medford v. Judge of the First District Court of Eastern Middlesex, 249 Mass. 465, 471. The petitioner contends that the hearing was not thus conducted in that the commission refused at the hearing on December 5 the request of the petitioner’s counsel for a further continuance. He in effect complains that there was an abuse of discretion by the commission in its denial of a continuance. A hearing held under the civil service statutes by a removing board is in the nature of a judicial investigation, Selectmen of Milton v. Justice of the District Court of East Norfolk, 286 Mass. 1, 5, and whether in proceedings of a judicial character a request for the continuance of a hearing ought to be granted ordinarily rests in the discretion of the trial tribunal. Noble v. Mead-Morrison Manuf. Co. 237 Mass. 5, 16. Blankenburg v. Commonwealth, 260 Mass. 369, 378. Commonwealth v. Soaris, 275 Mass. 291, 297. Ott v. Board of Registration in Medicine, 276 Mass. 566, 574. Under the applicable statute, however, (G. L. [Ter. Ed.] c. 31, § 42B) the petitioner was entitled to have a judge in the District Court “review” the entire action of the police commission in removing him from office, and not a part of such action only, and decide whether in its entirety the action of the commission was “justified.” Selectmen of Wakefield v. Judge of the First District Court of Eastern Middlesex, 262 Mass. 477, 482. Mayor of Lynn v. Judge of the District Court of Southern Essex, 263 Mass. 596, 598, 599. This included a review of the action of the commission refusing the request for a continuance.
The propriety of the refusal by the commission on December 5 of the request for a further continuance was a matter to be determined by the reviewing judge on the evidence before him, in the light of all the circumstances attendant
Diligence on the part of a police officer with respect to a hearing on charges of the character of those stated in the notice to the petitioner could reasonably be expected. Whitney v. Judge of the District Court of Northern Berkshire, 271 Mass. 448, 460. The reviewing judge on the evidence before him found that the refusal of the request for a continuance
4. The evidence before the judge of the District Court respecting the charge of conduct unbecoming an officer on November 7 consisted of a transcript of the testimony of a woman who was a witness at the hearing before the police commission. She testified that the petitioner, with whom she was acquainted, came to the door of her house in West-field on the evening of November 7 and had a conversation with her with respect to her aunt; that she 1 ‘ smelled liquor on his breath” and he “walked down the steps very unsteadily”; that he then entered his automobile, which was in front of the house, and thereafter drove it on the public streets. The judge found that the testimony of the witness appearing in the transcript did not show bias on the part of the witness; and that he should give due weight to the testimony and have regard for the fact that the commissioners saw and heard her testify. He found that the commission was justified in finding the petitioner guilty on this charge. See Mayor of Medford v. Judge of the First District Court of Eastern Middlesex, 249 Mass. 465, 470. The testimony, if believed by the commissioners, and we must now assume that it was, warranted the conclusion that the petitioner was under the influence of liquor and that while in such condition he operated his automobile on the public highway and thus committed a criminal offence punishable by fine or imprisonment and requiring, upon a conviction, the revocation of his license to operate an automobile. G. L. (Ter. Ed.) c. 90, § 24, as amended by St. 1936, c. 434, § 1. Commonwealth v. Lyseth, 250 Mass. 555. It cannot be said as matter of law that the operation of an automobile on the
5. The petitioner’s requests for rulings of law were rightly denied by the single justice. We reach the conclusion that the petition was rightly ordered dismissed by him without resort to the principle that the issuance of a writ of certiorari rests in the sound judicial discretion of the single justice hearing the petition. McCabe v. Judge of the District Court of Lowell, 277 Mass. 55.
Exceptions overruled.