The Portland daily press., 1884-06-16
THE ANDREWS HEARING.
The Proceedings for the Writ of
Certiorari.
THE ANSWER To THE PETITION
AND ARGUMENTS OF COUNSEL.

n
AND ARGUMENTS OF COUNSEL.
The hearing on the petition of Benjamin F.
Andrews for writ of certiorari to quash the
proceedings of the Mayor and Aldermen by
which he was removed from the office of City
Marshal was begun before Judge Virgin
Saturday. Hon. William L. Putnam and Hon.
G. W. Goddard appeared for the petitioner and
Hon. G. F. Libby and City Solicitor Looney
for the respondents.
Judge Goddard read the petition containing
a statement of the proceedings by which it was
attempted to remove him and asking that they
be declared invalid. He also read the record
of the City Clerk giving running account of
the proceedings against Mr.. Andrews, list of
witnesses, TIE final action of the Mayor and
the decision of the Aldermen.
Mr.. Libby then read the answer or return to
the petition which was as follows:
In addition to the records which the said petit
toner has made part of his petition in the present
case and copy of viii b is also hereunto annexed,
of the proceedings before the Mayor and Aldermen
of the ity of Portland at the hearing relating to
the removal of the petitioner from the office of City
Marshal of said city on charges duy preferred
against him, the same hearing referred to in said
petition of Benjamin f. Andrews to this honorable
court for the writ of certiOrari the said respond
ents hereby respectfully certify and return that the
following proceedings were hadsby and before them
and the following facts were found by them:
l. That no further specification of either of the
charges preferred was requested by said Andrews
his counsel at said hearing before the Mayor and
Aldermen but on the contrary at the opening of the
hearing the counsel for the present petitioner
waived all objection to the charges being general
or indefinite in their character, except that
sderaton was urged ground for delay of the pro-
cesdings to give time and opportunity to meet
them.
2. That the question how one of the witnesses
voted at the last municipal election which appears
in the record was excluded as in the Judgment of
the Mayor and the Aldermen of no importance and
wholly immaterial upon any issue legally arising
under the charges preferred.
8 That in reference to the form or method of pro-
ceeding the Mayor retiring from the chair after
reading the charges, calling the chairman of the
Aldermen to preside, and first hearing the testi-
mony before making the removal and asking the adj
vice and consent of the Aldermen-the counsel for
the present petitioner expressly stated at the hear
ing that he made no complaint about it, and was
not sure that it was not upon the whole the most
becoming method, The Mayor remained in attend
anee during the whole hearing.
A. That it was the judgment OF the Mayor upon
the evidence introduced at said hearing that the
several charges preferred against-said Benjamin f.
Andrews as set forth in said record, were all of
them proved and it was upon that judgment he act
ed in removing the said Andrews from said ONCE OF
City MARSHAL
evidence by the Aldermen who voted to advise and
consent to SAID removal. And it was upon this
judgment they acted In giving such advice and con-
sent.
s. That there was a full hearing before the
Mayor and Aldermen upon all the charges preferred
as they are set forth in said record.
And now these respondents respectfully submit
that this honorable court will not canvass the evil
dence laid before the Mayor and the Aldermen of
said city with the view of drawing inference and
determining facts therefrom, but will regard the
facts found by them from the evidence as estab-
lished and this their return and certificate of the
proceedings before them, together with the records
annexed to said petition, final and conclusive of
the same. They further respectfully submit that
their doings, findings and Judgments were in all
respects just and without error and within their
jurisdiction under the special laws of 1873, cited
in said petition and that the petitioner shows no
cause emitting him to the writ of certiorari as
MARQUIS f. KING, Mayor of Portland.
HORACE A. HALLETT,
SAMUEL B. KELSEY, Aldermen
JAMES f. HAWKES., of
ELIAS B. DENIsON, Portland.
EDWARD A. MOVES,
Judge Goddard read the acts of the Lsgisla-
ture, which he said were intended to take the
police department out Of politics. 1t was the
office is as permanent as that of the Chief
Justice of the State. His term Of Office is to
be- during good behavior, or to the time when
he has some disability, either physical or men
tai, or is incapacitated by old age from per-
forming the duties of his office. The act was
designed to promote the efficiency of the police
force. The remarks of Mayor Butler in his
inaugural address concerning the good results
expected from the law were read. Mayor But
Ter thought it would give permanency to the
force and make it independent of party poll
tics.
Judge Goddard submitted his reasons for
asking the writ; that it nowhere appears in
the record for what cause Marshal Andrews
was removed it does not appear that the
Aldermen advised and consented to the re-
moval for any specified cause; after the hearing
had been closed the Mayor did not specify any
particular cause for removal and did not meu-
ton any one of the charges ON which he re-
moved the Marshal; the record does not show
that majority of the Aldermen concurred in
any one of the seven charges.
Judge Goddard then touched on the several
charges in detail. spoke of their frivolousness
outside of the bribery charges, and claimed
that the marshal was entitled to know upon
which charge he had been removed. He sup
posed that the charges meant to convey inefi-
cheney, but they do not say so. There are
three separate specifications, inefficiency, con-
Splracy ana altering warrant. In0S6 several
charges all voted on in lump resemble trying
a man on one indictment for murder, arson
and burglary.
He said that after the hearing had close the
mayor set forth new matters, which he ssser-
ted to be matters of fact; that society called
the Law and Order League had been formed,
that the Mayor had been waited on, etc. If he
had any such statements to make, why did he
not incorporate them in his charges? The
Mayor instructed the Aldermen how to vote
but the marshal would have preferred to have
them instructed by some one except the prose.
cutor and that too when his counsel were pres
ent to object to any improper instruction.
The Mayor forced the A ldermen to the alter
native of cOndemning the Mayor or removing
the Marshal. The principle was the same as
in the famo us count out.
Mr.. Putnam claimed that the respondents
had no right to supplement the record by
statements as to what their judgment or find
ings were based upon and he moved to strike
out the fourth allegation in the answer as IT.
elevant.
he claimed that this is a petition for GER
tiorari which should be followed by an answer
and not writ which is to be followed by q re-
turn.
This allegation is, said Mr.. Putnam, that
such and such things were the judgment OF the
Mayor and Aldermen. 1t does not undertake
to state that they found such and such things
to be facts. 1t does not set mp any findings,
that such and such facts were found whether APP
pearing by record or otherwise. 1t does not set
up anything which could be made part of the
record, anything which we could meet by any
kind of evidence. 1t simply states what was
the opinion and not what was the action of
certain individuals. The record itself shows
that by a vote Of two to five they refused to
find the very things we say they ought to have
found. II they are willing to come in and
make return to this court that such findings
took place they have right to do it and that
will give us our remedy if they are untrue in
an action for false returns. But when they set
up that such was their judgment then 1 sub
NIT that they are undertaking to set up mat
ters they have no right to and which from
their nature it IS impossible for us to contra
dict and L submit that we are entitled to have
that portion of the answer stricken out as ir-
relevant.
Mr.. Libby-The difficulty with the hearing
thus far is that the two counsel upon the other
side do not seem to take the same view of the
questions presented. Judge Goddard has ar
gued the case without reference to the return
filed by the respondents.
Judge Goddard never saw it until this
morning.
Mr. Libby-He prepared his argument be-
fore he came into court, and has delivered it
without change. My brother, Putnam, does
see something in the return, and he sees so
much he wants to oct IL ont of the casa His