74 A. 1055 | N.H. | 1909
The first proceeding is a petition for a writ of certiorari, directing the mayor and aldermen of the city of Nashua *394 to certify the records of their proceedings in removing Hagerty from membership in the board of public works of the city, and asking that their order removing him from office be decreed null and void. The second is a petition for a writ of quo warranto to oust the defendant Crowley from membership in the board of public works, he having been appointed by the mayor and aldermen of the city to fill the vacancy caused by the removal of Hagerty, and having qualified and entered upon the duties of the office. In the superior court the writ of certiorari was granted and the record and proceedings of the mayor and aldermen in removing Hagerty from office were quashed and adjudged void, and the defendants excepted. In the quo warranto proceeding the trial judge found that the defendant was usurping the office from which Hagerty had been removed, and declined to allow the defendant to show the real cause upon which the mayor and aldermen acted in making the order of removal, and the defendant excepted.
The various contentions of the parties in these cases depend largely upon the decision of the question of the capacity in which the mayor and aldermen acted in removing Hagerty from office. If their powers were administrative and not judicial, there would be no occasion for a writ of certiorari to correct the record or set aside the proceedings. State v. Richmond,
It appears that Hagerty's appointment was legal, and that his office carried a fixed salary and was for a term of three years. The statute under which the removal was made reads as follows: "The mayor, with the advice and consent of the majority of the full board of aldermen, may remove any member appointed as aforesaid for cause." Laws 1901, c. 283, s. 2. If the word "cause," as here used, means legal cause and after notice and hearing, the statute confers judicial powers and means the same as *395 though it read "for cause, after notice and hearing." Gibbs v. Manchester, supra.
In Shannon v. Portsmouth,
Although the reasoning in this decision may not be as explicit as could be desired, there can be no doubt as to its meaning, and that it was there decided that the power conferred on the mayor and aldermen by the charter, to remove and suspend police officers and constables for sufficient cause, was judicial. Such being the construction of a legislative act conferring power to remove for cause when chapter 283, Laws 1901, was enacted, it is to be presumed that the legislature, by making use of the same language or its equivalent in section 2, intended that it should be taken to confer like power. Green v. Bancroft, ante, 204, 206. Moreover, it is generally held that statutes authorizing the removal of officers for cause confer judicial powers on the body that is to exercise *396
them, and that the word "cause" means legal cause, and contemplates a charge, notice, hearing, and judgment of removal upon cause. Ham v. Board of Police,
The power of removal conferred upon the mayor and aldermen being judicial, the rejection of the offer to show that the cause for removing the plaintiff was a just and legal one, if erroneous, did not harm the defendants; for the proceedings were irregular and summary, without preferment of charges, notice, and hearing, and would not be cured by a finding that the cause of removal was just and legal.
The position of the defendant Crowley, who was made a party to the certiorari proceedings, that he was entitled as a matter of law to prove that he had qualified as a member of the board of public works and entered upon the performance of the duties of his office at the time the petition for a writ of certiorari was served upon him, and to have the question whether he was a usurper determined in that proceeding, cannot be sustained. "The superintending power of the court is limited to the correction of errors of law apparent upon the record, or to requiring the body to act if they refuse to entertain a contest." Sheehan v. Mayor and Aldermen,
Exceptions overruled.
All concurred. *397