104 Mass. 498 | Mass. | 1870
At common law, there was r>o traverse to the return, upon a writ of mandamus. The utmost certainty was required in such returns. For any failure in this respect, the
Regarding the exceptions filed by the petitioner in this case as intended for and equivalent to a demurrer, admitting all the facts set forth in the return, the question is, whether those facts _,ustify the removal of the petitioner from his office or appointment as pilot.
From the return of the commissioners, it appears, 1st. that they received evidence, satisfactory to them, of misconduct, carelessness and neglect of duty on the part of the petitioner; 2d. that they thereupon suspended him until the next meeting of the trustees of the Boston Marine Society; 3d. that the petitioner was notified thereof; 4th. that the trustees, at their next meeting, did decide that his commission ought to be revoked; and 5th. that the commissioners thereupon revoked his commission.
This is in strict, literal compliance with the provisions of the St. of 1862, c. 176, § 4, for the removal of pilots for the port of Boston. The objections are, that it does not appear that the petitioner was found guilty of any specific act of misconduct, carelessness or neglect of duty; nor that he had notice of, and opportunity to be heard in his defence upon any complaint setting forth the charge made against him.
The petitioner contends tnat it should appear from the return what the acts of misconduct or neglect were, of which the commissioners had evidence satisfactory to them, in order that the court might determine whether those acts constituted in law each an offence as to justify the suspension and removal. We
The petitioner was notified of his suspension, and had an opportunity to be heard before the trustees upon the question of his removal, if he saw fit to avail himself of it. We must presume that the hearing before the trustees was fairly conducted ; that the grounds of the suspension were properly laid before them, and were adjudged by them to be sufficient ana proper causes for the removal. We do not think that adjudi
This conclusion is confirmed by the provisions, in the same statute, for the removal of pilots at other ports. By §§ 9, 10, any pilot for the ports of Salem, Marblehead and Beverly, or the port of Newburyport, may be removed from office by tht governor and council, whenever the marine societies of those ports respectively shall certify “ that he is incapable of discharging the duties of said office, or is otherwise unsuitable to be continued therein, or that the public interest requires that he should no longer remain in office.” Pilots at other ports are removable at any time at the pleasure of the governor and council.
The subsequent clause in § 4 of this statute, requiring the commissioners to “ receive and hear complaints by and against pilots for the harbor of Boston, and examine into and decide the same,” is a distinct provision from that relating to removals, and, like § 11 of Gen. Sts. c. 52, has reference to other objects. No inference should be drawn therefrom as to the formality of proceedings looking only to the exercise of the power of removal.
Upon these considerations, the court are of opinion that the peremptory writ should be Refused.