309 Mass. 377 | Mass. | 1941
The petitioner was a fireman of the city of Quincy and was under the protection of the civil service laws. On May 20, 1940, the chief of the department notified the petitioner in writing that he was removed from his employment as of that date for intoxication, neglect of duty, “conduct injurious to the public peace or welfare” and “ acting contrary to good order or discipline.” At the petitioner’s request, seasonably made, a public hearing was given to him on June 13, and on June 18 the petitioner was potified in writing of the chief’s decision affirming his order of removal. G. L. (Ter. Ed.) c. 31, § 43. Thereafter the petitioner brought a petition in the District Court of East Norfolk under G. L. (Ter. Ed.) c. 31, § 45, as amended, for a review of the action of the chief in removing the petitioner. The judge of the District Court found that the decision of the chief of the department “was made with proper cause and in good faith” and affirmed the decision. He also found, “if . . . material,” that the petitioner was not notified in writing of the chief’s decision confirming his removal within three days after the hearing, as required by § 43. On this petition for a writ of certiorari the question arose
The judge of the District Court was right in affirming the decision upon his findings of proper cause and good faith, notwithstanding the failure to notify. There is nothing in the record which in any way impugns the legal correctness of those findings. Proper cause and good or bad faith are the decisive issues before the District Court in a petition for review under § 45. Defects in the procedure unrelated to proper cause or to good or bad faith (or to the jurisdiction of the court to hear the petition, Mayor of Revere v. Special Judge of the District Court of Chelsea, 262 Mass. 393) are not open. The statute expressly commands the judge to “affirm the decision of the officer or board unless it shall appear that it was made without proper cause or in bad faith.” Commissioner of Public Works of Boston v. Justice of the Municipal Court of Boston, 228 Mass. 12, 16. Murray v. Justices of the Municipal Court of Boston, 233 Mass. 186, 188, 189. McCabe v. Judge of the District Court of Lowell, 277 Mass. 55, 57. Mayor of Medford v. Judge of the First District Court of Eastern Middlesex, 249 Mass. 465, 471. Commissioner of Institutions of Boston v. Justice of the Municipal Court of the Roxbury District, 290 Mass. 460, 462-464. Walsh v. District Court of Springfield, 297 Mass. 472, 475. Section 45 differs materially in this respect from § 42B, which relates only to police officers. Decisions upon § 42B must be read with this difference in mind. The distinction between the two sections has been pointed out repeatedly. Selectmen of Wakefield v. Judge of the First District Court of Eastern Middlesex, 262 Mass. 477, 482, 483. Mayor of Lynn v. Judge of the District Court of Southern Essex, 263 Mass. 596, 599. Daley v. District Court of Western Hampden, 304 Mass. 86, 95. Costa v. District Court of Eastern Essex, 305 Mass. 85, 86. The case of Whitney v. Judge of the District Court of Northern Berkshire, 271 Mass. 448, cited by the petitioner, arose under § 42B and not, as did the present case, under § 45.
Whether the petitioner, instead of going to the District Court, could have maintained a petition for a writ of mandamus to secure reinstatement because of the failure seasonably to notify him of the chief’s decision is not before us. See Peckham v. Mayor of Fall River, 253 Mass. 590; Lowry v. Commissioner of Agriculture, 302 Mass. 111, 116. By seeking review in the District Court he conceded that a foundation had been laid for that procedure. Daley v. District Court of Western Hampden, 304 Mass. 86, 91, 92.
In accordance with the stipulation in the report the entry will be
Writ denied.
Petition dismissed.