188 P. 367 | Mont. | 1920
delivered the opinion of the court.
On September 10, 1915, written and verified charges were presented to the city council of Butte against relator, as chief of the fire department, an answer was filed and a hearing had •at the next regular meeting of the council, and by a majority vote of all of the members an order was made and entered removing him from his official position. Relator thereupon sued out, in the district court of Silver Bow county, a writ of review, to which return was duly made, and a transcript of the testimony taken before the council was permitted to be filed with the court. On the hearing the court entered judgment affirming the order of the council.
Testing the written charges by the above rule, it will be sufficient to merely note the nature of the charges made, among which
The foregoing examples will serve to disclose the fact that the written charges as filed were adequate, as a pleading, and were sufficiently definite and certain to advise relator of the nature of the charges against him and to enable him to prepare his defense.
2. Appellant contends that “the evidence failed of any proof of any facts attempted to be alleged.” This contention raises the question as to how far the court, on a writ of review, can go-into an examination of the evidence received by the inferior tribunal, board, or officer.
Section 7209, Revised Codes, provides that — “The review upon this writ cannot be extended further than to determine whether the inferior tribunal, board, or officer has regularly pursued the authority of such tribunal, board, or officer.”
The writ cannot be used to correct errors committed in the
Under section 3328, Revised Codes, charges may be preferred against a fire chief or other member of the fire department, and “if such charges are found proven by the council, the council
“Where the power of a municipal body to remove from office is not discretionary, but only for cause, after notice and hearing, the proceedings are judicial in their nature and may be reviewed on certiorari [the writ of review]. On such review, the court will inspect the record to see whether the body had jurisdiction and kept within it, and whether the charges were sufficient in law, and will examine the evidence, not for the purpose of weighing it, but to ascertain whether it furnishes any legal and substantial basis for the removal.” (28 Cyc. 442; In re Carter, 141 Cal. 316, 74 Pac. 997; Carter v. Durango, 16 Colo. 534, 25 Am. St. Rep. 294, 27 Pac. 1057; State v. Duluth, 53 Minn. 238, 39 Am. St. Rep. 595, 55 N. W. 118; People v. Nichols, 79 N. Y. 582; Hayden v. Memphis, 100 Tenn. 582, 47 S. W. 182; State ex rel. Wynne v. Examining and Trial Board, 43 Mont. 389, Ann. Cas. 1912C, 143, 117 Pac. 77.)
If the charges are unsupported by the evidence, or the findings are contrary to all the substantial evidence, or where the decision below has no evidence to support it, the question then becomes one of law, and the evidence may be reviewed to determine if such is the fact, but the court cannot review the evidence to determine the preponderance thereof. (3 Cyc. 348-362; Somers v. Wescoat, 66 N. J. L. 551, 49 Atl. 462; Kidder v. Townsend, 3 Johns. (N. Y.) 435.)
A careful examination of the record discloses that all the proceedings of the council were regular and in conformity with the provisions of the statutes on the subject; the council had jurisdiction and kept within it.
In order to determine the question concerning the evidence, it would be well to first ascertain what are some of the duties
Section 3331, Revised Codes, provides, that “the chief of the fire department shall have sole command and control over all
Bearing in mind, then, the duties imposed upon the chief or head of a fire department, and, from the necessity of adequate fire protection in a city such as Butte, the importance of proper and adequate regulations, orders, and directions to the men under him, and of the inspection of the equipment for fighting fire, and the prompt repair or replacement of that not in perfect condition, we come to the consideration of the evidence introduced. We find that there is evidence, with reference to the McGowan fire — not the statements of the McGowans alone, but of disinterested witnesses — that ten to twenty minutes elapsed before the arrival of the chief and the department; that the chief drove past,,
We find no substantial error in the record. The judgment is affirmed.
Affirmed.