Gilbert v. Board of Police & Fire Commissioners

11 Utah 378 | Utah | 1895

Bartoh, J.:

The relator in this case was a member of the fire depart•ment in Salt Lake City, and his contention is that he was wrongfully removed from his position in that department ‘by the board of police and fire commissioners on the 11th •day of August, 1894. It appears from the record that he leld the position for a period exceeding three years immediately prior to bis removal; that tbe said board claimed’ tbe right to remove him under and by virtue of chapter 37, Sess. Laws 1894, and, in case he desired to be reappointed, to compel him to undergo a competitive examination, as therein provided, in the same manner as applicants, who were not members of said department at the time of the-enactment of said chapter; that the appellant acknowledged that the relator was an efficient officer of long -service;, that the charges preferred against him as grounds for removal were that he was under the minimum height, had defective eyesight, and was over the maximum age; that a hearing was had on these charges after he had been suspended from service, but the appellant introduced no evidence to sustain them; that at such hearing the burden of proof was cast upon the relator to show that there was-not sufficient ground for his removal; and that the charges-were sustained, and the relator dismissed from service. After the relator was thus removed, he applied to the district court for a writ of certiorari commanding the appellant to certify and return to the clerk of said court all. the proceedings concerning his suspension, dismissal, and-discharge. At the hearing of the petition, after the return., made in obedience to the writ, the court entered judgment that the decision of the board suspending and dismissing-the relator from service be set aside, and declared the-same to be of no force and effect. From this judgment-the board appealed.

The first question to be considered on this appeal is-whether the board was acting in a judicial capacity; for unless it was exercising judicial functions, and not simply-performing ministerial duties, its action cannot be reviewed-on certiorari. Counsel for the appellant contend that it was not in the exercise of judicial functions, and that, if it was, then, it is insisted, the act of the legislature conferring judicial power upon the board is void, as being in. conflict with the organic act of this territory, which provides, in section 9 thereof, “ that the judicial power of said territory shall be vested in a supreme court, district courts, probate courts, and in justices of the peace.” The-law which it is claimed is in conflict herewith if it empowers the board to exercise judicial functions is found in the legislative act approved March 8, 1894 (Sess. Laws,, p. 33), and, so far as necessary to this decision, provides* in section 6, that, within a certain time after its appointment, the board “shall prepare and adopt such rules and regulations to govern the selection and appointment of persons employed on the police force or in the fire departments of said city as shall be adapted to secure the best service for the public, in each department;” and such rules may provide for competitive examination of applicants. Section 7, among other things, provides that “no officer or member of said departments shall be removed except for cause, and after public hearing before said board upon charges made in writing;” and in section 9 it is provided: “ Such rules and regulations shall specify the date when they shall take effect; and thereafter all selections of persons for employment, or appointment, or promotion, either in the police or fire departments, * * * shall be made in accordance with such rules and regulations.” Section 12 specifies the character of and provides how competitive examinations of applicants shall be conducted,, and section 20 reads as follows: “Except in cases herein otherwise provided, no officer or member of said fire or police departments shall be dismissed except for cause,, nor until after trial, and by an affirmative vote of three-members of said board. The accused shall be furnished with a written copy of the charges against him at least ten days previous to the day of trial, and he shall have an opportunity to examine witnesses in his behalf, and all 'witnesses shall be examined under oath, and all trials ■shall be public.”

These are the several provisions of the law under which the board in this case proceeded to remove the relator. It is clear that the power here conferred is judicial in its nature, because, in order to effect a removal, the board is .required to prefer charges, afford the accused an opportunity to be heard, examine witnesses, and decide the question upon evidence. All such proceedings are of a judicial ■character. The term “judicial,” however, as applied to the actions of boards of this class, is not to be received in the sense ordinarily applied to courts of justice. The words “judicial power,” when applied to such courts, mean the authority vested in the judges. Bouvier. In this sense these words are used in the organic act, and nowhere is there any provision in said act which prohibits the legislature from creating a ministerial board, and requiring of it the performance of judicial acts as incidental to its ministerial capacity. While such boards are essentially ministerial, and may be, to a certain extent, legislative, bodies, still they may be, and frequently are, endowed with quasi judicial power to proceed in a summary way, .and out of the course of the common law. A city council is such a body, and so likewise is a board of county commissioners, or county court, as denominated in this territory; and yet no one has pretended to question the power of such a body in such a proceeding, as being inconsistent with the organic act. Courts of justice may authoritatively ■declare what the law is. Such a board or body has no ¡such power. Its judicial authority extends no further than .is necessary to an orderly and proper management of the .affairs over which it has control. We think the law is well .settled that the legislature may authorize boards of this «character to perform judicial acts, and that such acts may be reviewed on certiorari when there is no other plain, speedy, or adequate remedy provided; and it is equally well settled that, when the acts complained oí are purely ministerial, certiorari ordinarily will not lie. Robinson v. Supervisors, 16 Cal. 208; State v. Common Council of Duluth (Minn.), 55 N. W. 118; State v. Whitford, 54 Wis. 150, 11 N. W. 424; People v. Mayor, etc., of New York, 5 Barb. 43; Merrick v. Township Board, 41 Mich. 630, 2 N. W. 922; Waugh v. Chauncey, 13 Cal. 11; Waterworks Co. v. Bryant, 52 Cal. 132; In re Fay, 15 Pick. 243; Herrick v. Carpenter (Iowa), 6 N. W. 574; Supervisors v. Briggs, 2 Denio, 26. The acts of the board of police and fire commissioners complained of in this case were neither ministerial nor legislative, but judicial, in their nature, and therefore we are of the opinion, there being no other remedy for review provided by law, that certiorari is the proper and appropriate remedy.

The most important question raised in this record is ■whether, on a writ of certiorari, the court may extend its inquiry beyond the mere question of jurisdiction of an inferior tribunal, board., or officer, and determine whether ¡such inferior tribunal, board or officer proceeded in accordance with law. If, in a case like the one at bar, as is ■contended by counsel for the appellant, the court has no jpower on certiorari to examine the evidence or proceedings for any purpose, then the court cannot inquire into the evidence to ascertain whether errors of law were committed during the progress of the trial. Nor can it con■sider whether the facts presented by the record warrant the judgment pronounced by the board, not even though ■such judgment, when tested by the law applicable to such facts, was found to be erroneous and unjust. Under this contention the sole question to be determined would be whether the judgment of the board was within its jurisdiction, and, if so, then such judgment would be deemed conclusive. In accordance with this view, the-writ removes nothing from the inferior tribunal but tire-record, and, if the return contains the evidence, such evidence cannot be considered; and in such case the fact that the return contains the testimony, or other matter not properly a part of the record, does not enlarge the-power of review, nor authorize the examination into-anything but the question of jurisdiction, and the court, cannot look into the evidence to determine any question, on its merits. Counsel is not without authority for this position when the review is sought on common-law certiorari. Such has often been declared to be the limit of review under the common-law writ, which it has been held our writ, in effect, is. Golding v. Jennings, 1 Utah, 135.

This doctrine is stated in a number of New York cases. In Ex parte, etc., Mayor of Albany, 23 Wend. 277, Mr. Justice Cowen, after discussing the office of the writ, and’ referring to numerous decisions in that state relating to-the limit of review on common-law certiorari, says: “The-amount of these is that we will not, in any case, on a. common-law certiorari, go beyond the question of power, which is another word for jurisdiction; and in searching-for power we will confine ourselves to matters properly introduced into the return/’’ And further on, and in the same opinion, he says: “We cannot look into testimony on the merits, even when the return comes from a tribunal bound to act upon the general law of evidence/” In People v. Mayor, etc., of New York, 2 Hill, 9, Mr. Justice-Bronson, delivering the opinion of the court, said: “The-writ of certiorari, when issued for the purpose of enabling-this court to exercise its supervisory power over inferior-tribunals, removes nothing but the record' — or other entry in the nature of a record — of the proceedings in the court, below; and, if the return contains anything more, it cannot be regarded.” There are other cases in New York and ■elsewhere which declare the same doctrine. Some hold that, under the provision of statute, errors may be ground for reversal on certiorari, though not jurisdictional; and there is still another class of cases which holds that the proceeding on certiorari is in the nature of a writ of error, and that, after judgment, the. whole proceeding of the inferior tribunal, including the evidence, may be brought up on certiorari, not only for the purpose of determining .jurisdictional questions, but also for the purpose of reviewing errors of law occurring in the proceeding before the inferior tribunal, which may affect the merits of the case. .And this now seems to be the settled doctrine in relation to inferior tribunals, boards, and officers exercising judicial functions, when there is no plain, speedy, or adequate .remedy for review provided by law.

The office of the common-law writ has been much enlarged by statute and decision in cases where there is no ■other proper remedy, and, in addition to determining ■ questions of jurisdiction, errors in law affecting the substantial rights of the parties may now be corrected, and the testimony may be included in the return, and •examined to determine whether there is competent evidence to warrant and justify the judgment of the inferior tribunal. Such enlargement of the writ, how■ever, does not warrant the setting aside of a judgment when it is based on conflicting evidence, nor when there .are errors in the proceedings in matters not material as .affecting the substantial rights of the party, and not violating any rule of law or affecting the jurisdiction; but where there is an entire absence of proof to support the judgment or decision or order, or where the adjudication made is entirely unauthorized by the proof, it will be set .aside and reversed, even though the inferior tribunal Jiad jurisdiction of the person or subject-matter, and so where the proceedings culminating in the judgment are manifestly erroneous, and in violation of those-prescribed by law. The same rule applies to new jurisdictions created by statute, when the proceedings required are different from those of the common law. The examination of the evidence by the appellate court is not for the purpose of determining whether the preponderance-thereof is on oüe side or' the other, but to determine whether there is any testimony which will justify the judgment or finding of the inferior tribunal, as a legitimate inference, under the rules of law, from the facts-proven, regardless of whether or not the appellate court would draw such inference from such facts. And this power of review on certiorari is recognized as the settled law in England, as well as in this country. The English courts have long exercised the power under this writ to-review the record and proceedings of inferior tribunals, to-determine questions of law arising therein, in cases where-there was no other remedy for review.

In the time of Sir Wiliam Blackstone, in criminal causes, the writ was used “to certify and remove the indictment, with all the proceedings thereon, from any inferior court of criminal jurisdiction into the court of king’s bench; ” and the writ of certiorari, when issued and delivered to the inferior court for removing any record or other proceeding, as well upon indictment as otherwise, superseded the jurisdiction of such 'inferior courts, and made all subsequent proceedings therein entirely erroneous, unless the court of king’s bepch remanded the record to the court below, to be there tried and determined. 4 Bl. Comm. 320, 321; 1 Bac. Abr. (6th ed.) p. 559; 1 Tidd. Prac. (1st Am. ed.) p. 397; King v. Daman, 2 Barn. & Ald. 378; King v. Glossop, 4 Barn. & Ald. 616. The power has been maintained with much zeal, as being founded in necessity as well as justice, for it is manifest that if a superior conrt were limited in its inquiry on cer-tiorari to the mere question of jurisdiction, without reference to errors in law affecting the merits of the case occurring in the proceedings before the inferior tribunal such inquiry would be of little use, and grievous wrongs; could be inflicted without any possible redress. Dillon, im his commentaries on the law of Municipal Corporations; (volume 2, § 739), says: “ It is well settled in England; that courts of superior and general jurisdiction will examine on certiorari the proceedings of inferior or special jurisdictions or officers. * * * If the proceedings are; in a common-law court of record, a writ of error is the proper remedy to correct or vacate them, if erroneous;, otherwise the remedy is by eertiorari. So, in this country the rule has been very generally adopted by the courts,,, where a new jurisdiction has been created by statute and the inferior court, board, tribunal, or officer exercising it. proceeds in a summary manner, or in a course different, from the common law, that the circuit or district court, of the state, or other tribunal -exercising general original common-law ’jurisdiction, has, in the absence of a special remedy being given, an inherent authority to revise the-proceedings of such inferior jurisdiction by certiorari

In People v. Board of Police & Excise, 69 N. Y. 408, Mr. Chief Justice Church said: “The offic.e of a common-law certiorari has been very much enlarged by the-later decisions in this state, but there is no authority holding that questions of fact from conflicting evidence or conflicting inferences which may be drawn from facts, or matter of judgment or discretion in a case justifying their exercise, can be reviewed. Only errors in law affecting materially the rights of the parties may be corrected, and the evidence may be examined in order to determine whether there is any competent proof to justify the adjudication made.” So in People v. Board of Police Department, 72 N. Y. 415, the court-said: “It is now settled that the court, on a common-law certiorari to review the judicial action of boards, commissioners, or inferior officers, is not confined to the mere question of jurisdiction of the person and subject-matter, but will look into the proceedings, and, if the adjudication made is unsupported by any evidence, it will be reversed.” In Berry v. Lowe, 10 Mich. 9, the supreme court of Michigan, on certiorari to a justice, the question arising from the evidence, said: “If the alleged error is a total want of evidence to prove some fact necessary to sustain the judgment, the court will look into the testimony to see whether there was such evidence or not. If there was, it will not weigh it or inquire into its sufficiency, but affirm the judgment. If the return shows no such evidence, and it ■appears all the testimony before the justice has been returned, the judgment will be reversed, on the ground that the justice erred in law in rendering the judgment he did without such evidence.” In Farmington River Water Power Co. v. County Com’rs, 112 Mass. 206, Mr. Chief Justice Gray said: “A writ of certiorari (when not used as ancillary to any other process) is in the nature of a writ of error, addressed to an inferior court or tribunal whose procedure is not according to the course of the common law. After the writ has been issued, and the record certified in obedience to it, the court is bound to ■determine upon an inspection of the whole record, whether the proceedings are legal or erroneous.”

In State v. Dodge Co. 56 Wis. 79, 13 N. W. 680, Mr. dhief Justice Cole, delivering the opinion of the court said: “ On this common-law certiorari, which brings up for review the proceedings of an officer or board which acts in a summary manner out of the course of the common law in the exercise of quasi judicial powers, this court will look into the proceedings, not only for the purpose of ascertaining whether such officer or board acted according to law, and within its jurisdiction, but will also correct errors and irregularities in its proceedings.” In Harris v. Barber, 129 U. S. 366, 9 Sup. Ct. 314, the supreme court of the United States, speaking through Mr. Justice Gray, said: “A. writ of certiorari, when its object is not to remove a case before trial, or to supply defects in a record, but to bring up after judgment the proceedings of an inferior court or tribunal whose procedure is not according to the course of the common law, is in the nature of a writ of error. Although the granting of a writ of certiorari rests in the discretion of the court, yet, after the writ has been granted, and the record certified in obedience to it, the questions arising upon the record must be determined according to fixed rules of law and their determination is reviewable on error.” People v. Smith, 45 N. Y. 772; Inhabitants of Tewksbury v. County Com'rs, 117 Mass. 563; City of St. Paul v. Marvin, 16 Minn. 102 (Gil. 91); Inhabitants of Mendon v. County Com’rs of Worcester, 5 Allen, 13; Hyslop v. Finch, 99 Ill. 171; People v. Board of Police, 39 N. Y. 506; People v. Board of Assessors, Id. 81; Jackson v. People, 9 Mich. 111; Fall v. Paine, 23 Cal. 303; Rawson v. McIlvaine, 49 Mich. 194, 14 N. W. 513; Iron Co. v. Schubel, 29 Wis. 444.

From an examination of the authorities, it is quite clear that the contention of counsel that in a case like the one at bar, where there is no other remedy provided by law, the review is limited to questions of jurisdiction, and that the court cannot look into the evidence for any purpose rests on no sufficient foundation, and, if such were the law, then the board of commissioners could arbitrarily exercise the power of removal, however groundless might, be the charges preferred against the officer, or erroneous the judgment. If the board had jurisdiction of the subject or of the person to be affected, wrongs committed would be remediless, and every person subject to its authority would be absolutely at its mercy. In People v. Board of Police, supra, Mr. Justicé Woodruff, in delivering the opinion of the court, after reviewing a number of the more prominent cases on the writ of certiorari, and expressing a belief, in view of the great number of proceedings of a summary character in which powers are' exercised affecting valuable rights, both of person and property, that this most useful writ had been confined within too narrow limits, said: “Let it be once established that when an officer or board of officers have jurisdiction of the subject or of the persons to be affected,, and proceed in its exercise according to the prescribed forms or mode, their determination is final, and beyond the reach of any review, whatever errors in law they may commit, and however clear it may be upon undisputed facts that their judgment, decision, or order is not warranted, and there is danger that much of injustice and wrong may happen without possibility of redress.-”

Nor are the views herein expressed regarding the office-of a common-law certiorari, and the power of the court on such a writ, in contravention of the statute of this-territory in relation to this subject. Section 3718, Comp. Laws TJtah 1888, reads as follows: “The writ of certiorari may be denominated the writ of review.” It is apparent, that the writ here designated is the common-law certiorari, and hence the power of the court under it is the same as at commotL law, except as narrowed or enlarged by statute. Section 3719, Id., reads: “A writ of review may be granted by any court, except a probate or justice's court, when an inferior tribunal, board or officer exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, and there is no appeal, nor in the judgment of the court, any plain, speedy, and adequate remedy.” This section designates under what conditions- and from what court the writ may issue. It may issue when there is no appeal or other plain, speedy, and adequate remedy. In the case at bar there is no pretense-that the relator has any other remedy. Section 3722, Id., reads: “The writ of review must command the party to-whom it is directed to certify fully to the court issuing the writ, at a specified time and place, a transcript of the-record and proceedings, (describing or referring to them with convenient certainty), that the same may be reviewed by the court, and requiring the party in the meantime to desist from further proceedings in the matter to be reviewed.” This section is simply declaratory of the common law, for, as has been seen, at common law the record as-well as the proceedings of the inferior tribunal are brought up in the return to the writ, and the inferior court is-prohibited from proceeding further in the meantime. Such is the law declared in this statute. Section 3725, Id., reads: “The review upon this writ can not be extended, further than to determine whether the inferior tribunal, board or officer,' has regularly pursued the-authority of such tribunal, board or officer.” It would indeed be a very narrow interpretation which would limit the review of courts under this section to the mere question whether the inferior tribunal, board, or officer had jurisdiction of the party or subject-matter, especially when considered in connection with the next section (3726, Id.), the only remaining one material here, and the language of which is: “If the return to the writ be defective, the-court may order a further return to be made. When a full return has been made, the court must hear the parties, or such of them as may attend for that purpose, and may thereupon give judgment, either affirming, or annulling or modifying the proceedings below.”

Construing the'se two sections together, it is evident-that in any case where the inferior tribunal, board, or officer has not regularly pursued its authority in the course •of its proceedings, or has rendered judgment, or made an order in contravention of law when applied to the facts, ••the. court may, after hearing the parties, render judgment ;as provided in the last section quoted. For this purpose the court may of necessity, and as a salutary restraint upon such inferior tribunal, board, or officer, require that the •entire proceedings, including the evidence, be brought up in the return, and look into the testimony to determine whether there is any evidence which will warrant, as a matter of law, the judgment, decision, or order which is the subject of complaint. The power here conferred upon the court does not essentially differ from that exercised by -the courts on common-law certiorari. It is simply affirm-;atory of the settled rule of law. Nor are the views expressed herein on this question of the power of a certio-rari in conflict with the decision of this court in Saunders v. Sioux City Nursery, 6 Utah, 431, 24 Pac. 532. In Golding v. Jennings, 1 Utah, 135, we think the court •confined the office of the writ within too narrow limits, and, so far as that case is in conflict with the rule herein ■declared, it is disapproved. We conclude, therefore, that in the case at bar the board, in its return to the writ, properly certified the whole proceeding had before it, in•cluding the evidence, and that the district court had power, and on appeal this court has power, to examine the whole evidence, to determine whether, as a matter of law, there was any proof before the board which could .sustain its judgment discharging and dismissing the relator from service, as well as to determine whether it had jurisdiction of the party, and whether its proceedings were had in accordance with law.

Having thus determined that the record and proceedings •of the board are properly before this court on appeal, the further question is made whether the appellant had authority to compel the relator to undergo a competitive examination as a condition to his continuing in the employ of the department. To determine this question, reference to' the act approved March 8, 1894, again becomes necessary. Counsel for appellant insist that the word “employed,” as used in section 6 of the act, in the sentence, “Said boards in the cities mentioned in this act, shall prepare and adopt such rules and regulations to govern the selection and appointment of persons employed on the police force, or in the fire department,” etc., applied to all persons in the employ of either department mentioned in the act at the time of its passage, as well as to applicants for positions thereafter. Such a construction would compel all such employés, at the mere pleasure of the board, to-submit either to a removal from service or to undergo the competitive examination provided for in the act for applicants who may be seeking employment; and it appears in this case that the board acted on such construction, for it-demanded of the relator that he undergo such an examination as a condition precedent to his continuing in its employ. An examination of the entire act reveals no such legislative intent, and, if there is any doubt as to the-meaning of the word “employed” in section 6, such doubt is removed by section 9, for in that section the legislature expressly provided that: “ Such rules and regulations shall specify the date when they shall take effect; and thereafter all selections of persons for employment, or appointment, or promotion,” etc., shall be made according to such rules- and regulations. The provision is for selections to be made thereafter; that is, after the rules and regulations have been adopted. There was manifestly no intention to-include among applicants for employment those who were already in the service. Nor was it necessary to so include employés to secure efficiency in either department, because-there is ample provision in the act to secure the removal .and dismissal of all those who may be unfaithful or incompetent. To compel persons who were in the employ of either department at the time of the passage of the act, and who continued therein, to submit to an examination, or, failing to do so, to suspend or remove them from ■service for such failure, is unwarranted under the law.

The remaining question is whether the appellant regularly pursued its authority in the proceedings had to remove the relator. The statute law applicable to this branch of the case is found in sections 7 and 20, herein-before referred to and quoted. These sections provide that no officer or member, either of the fire or police department, shall be dismissed or removed, except for cause, nor unless charges have been previously preferred against such ■officer or member in writing, and the accused given an opportunity to be heard. This is a salutary law founded in justice, is mandatory, and must have been strictly pursued ■or else the judgment of the hoard is nugatory. A similar provision of a statute was construed by this court in the ■case of People v. McAllister, 10 Utah, 357, to which we refer, on this question of the removal of officers for cause, for our views on the question in this case. An examination of the record before this court on appeal shows that the relator, while in actual service in the fire department, was suspended; that submission to examination was made a condition precedent to reinstatement; that thereafter charges were preferred against him, as hereinbefore stated, but at the hearing the board introduced no evidence to ■sustain the charges; and the record shows that, according to the evidence of the relator, he was in every way an ■efficient officer, and that the onus prolandi was cast upon him to show that there was not sufficient grounds for his removal. An examination of the evidence in detail is unnecessary. Nor is further reference to the record necessary. It discloses a state of facts and a course of proceeding from which it is manifest that the board did not regularly pursue its authority, and there is no evidence in the record to sustain its decision and order suspending and ■discharging the relator from service. Such decision and ■order are therefore void as being in excess of jurisdiction and the judgment of the district court must be affirmed. The judgment is affirmed.

Smith and King, JJ., concur.