The Portland daily press., 1884-07-29
THE ANMREWs CASE.

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THE ANDREWS CASE.
Argued Before the Inv Court Yeste, day
by Judge Goddard for Plaintiff and
Mon. g. #. Libby for Respondent.
The arguments upon the exceptions in the
case of Benjamin f. Andrews vs. Mayor
King and the Aldermen began yesterday
morning at 10 o'clock before the Law Court.
This case was heard at nisi priuS before JUS
tice Virgin on the 18th of June
The petitioner alleged in his petition that he
was appointed Marshal of Portland in 1883 by
Mayor Deering; and that in 1884 Mayor King
had attempted to remove him by proceedings
under the law of 1878 regulating the tenure of
his office; but that the proceedings we're null
and void because it did rot appear that the
Mayor had removed him for inefficiency or
other legal cause; or that the Aldermen had
advised and consented to the remoy al for any
legal cause; aid furthermore, because certain
allegations were made by the Mayor in the
presence of the Aldermen. after the petitioner
aud his counsel had Withdrawn, and upon
these allegations the petitioner had 10 hearing
whatever. He therefore asked the court 10
Issue writ of certiorari, directing tae Mayer
and Aldermen to produces aud certify their
proceedings, to the end that they should be
quashed and declared void.
The respondents answered: l. That the
counsel for the petitioner, lat the hearing, waived
al objection to the charges as being general or
indefinite III their Character, except as that
con ider ation was urged as ground for delay
2. That it was the judgment of the Mayor
upon the evidence, that the several charges
against the petit oner were all proved; that the
same judgment was formed by the Aldermen
who advised the removal of the Marshal; and
that the Mayor aud Aldermen acted upon thai
judgment 8. That there was full bearing
upon all the charges preferred. This answer
was signed by the Mayor and five OF the s. ven
Aldermen.
The petitioners solicitors, Messrs. Putham
and Goddard, objected to the reception of this
answer as proper return. They offered ev;-
dence to prove that they did not waive their
objections to trtan vague charges, uDaccom-
panied by specifications; and also to prove that
these charges were abandoned by the CITY So
licitor. They moved that the second para
graph OF the answer, as reported above, be-
str cken out as irrelevant and i'm proper. They
also moved to dismiss the answer, because it
was not signed by all the respondents. They
also offered to prove that the second paragraph
could not be true, because the Mayor, before his
election, had greed to remove the Marshal. in
consideration of support at the polls, promised
by Charles f. SWEET; and Furthermore, because
one OF the Aldermen, after the evidence was
in, had objected to voting for the removal OF
the Marshal on the evidence, but had been in,
duced to yield his judgment because he was
unwilling to take issue with the Mayor The
solicitors also offered to prove that no hea inc
was had on certain allegations by the Mayor.
referred to in the pet ton.
The Court ruled pro form1a, that all the evil
dence offered was lnadmssbe; that the an
swer of the respondents was in all respecfs
conclusive against the petitioner; and that the
petition be dismissed and the writ denied. On
these rulings and refusals to rule, executions
were allowed, and SO the case came up to the
full bench.
Messrs. Putnam and Goddard appeared for
the pr titioner, and Mr.. Charles f Libby for
the respondents.
Mr.. Putnam read the record, petition, an
swer and exceptions as reported above
Mr.. Libby called upa motion fled with the
Clerk of Courts few days ago, for the dis
missa OF the petition on the ground that the
court has no jurisdiction of the matter and that
the exceptions were improvidently allowed.
He said II the Court thought that as to that
part of the Case he was the moving party aud
thecounsel upon the other side wished it he
would argue that branch first.
Chief Justice Peters replied that the cues
ton OF jurisdiction would necessarily come up
in the course of the argument and that il
would be better to hear the whole matter in
order.
Judge Goddard then made the opening ar
gument for the petitioner.
The writ of certiOrGri, he said, is for the COR
rection Of Judicial proceedings not according TO
the course OF common law, and from which
there is no appeal or writ of error The adiu-
dication OF the inferior tribunal is conclusive
upon facts presented by the record of its pro-
eeedings. The petitioner cannot contradict
the record or return; but must bass his claim
upon irregularities apparent in the record
But II the respondents offer extriusic eyidenee
to show that substantial justice has been done
the petitioner may then offer evidence in re-
butttal.
Upon these principles Judge Goddard con-
tended that the answer of the respondent was
not proper return, but if admitted at ali
should be admitted as extrinsic evidence sun-
ported Dy the oaths of the sgners to be an
swered oy evidence in rebuttal. 1t was rot
proper retarn because it was signed by a
part only OF the respondents and because il
contradicts the record, which return could
only supplement. The answer alleges that IN the
Judgment OF the Mayor and Aldermen, six or
seven weeks before, all the charges against the
petitioner were proved; but he-Mavor me-
elected and the Aldermen refused at the
proper time, to declare that opinion: and it ia
a rule of law and of good sense, that he who
refuses to speak when he ought to speak shall
not be allowed to speak when he afterward
desires to speak. Furthermore the answer
alleges that there was q full hearing uDon ali
the charges preferred, while the record shows
taat certain charges were made by the Mayor
aiter the nearing was conc uded and the petit
toner had retired with his counsel. A return
contradictng the record is an absurdity, The
afhdavit OF the Mayor and five Aldermen must
be regarded therefore as extripsc evidence
and the petitioner claims that he should be-
allowed to offer testimony showing that the
answer is untrue.
In the case OF Levant VS.. CouLt y Commits.
soners (67 Maine, 42) it was stated that The
answer, so far as it contains any statement of
he facts proved and the rulings thereon. not
shown by the record, is conclusive. This
dsctuna was not essential to the decision of the
case, but appears 10 have been taken from the
Massachusetts, cases cited on the same mage:
and an examination of these cases shows thai
the ruling was at no time essential. 1t was
submitted. therefore, that the question is still
open to examination; and that different re-
suit should be reached, since the doctrine. as
1t stands leaves no remedy at common law for
false answer in the nature of a return.
coming next to the record, Judge Goddard
CANNED tnat the pro J0rnlG ruling, dismssiug
the petition and denying the writ, must be re-
versed, because it does not appear that ma
iority of the Aldermen sssented to any of the
charges filed by the Mayor; or that there was
any finding by the Aldermen or that the
Mayor removed the Marshal for any legal
cause; and also, because the Mayor after the
hearing presented new causes to the Aldermen.
OF which there was no notice to the petitioners,
and on which there was no hearing. The effect
of this proceeding was to leave the court in
ignorance of the causes upon which the action
was taken, and consequently to deprive the
petitioner of the right to demand the judg-
ment of tae court as to tire validity OF the
causes We had right to know whether the
causes regarded by the Mayor and Aldermen
as sufficient were in fact legal causes The
refusal of the Aldermen to vote seyerallv
upon the charges of bribery, of altering war.
rant, and of inefficiency, showed that they
were unwilling to assign cause for their
action, and left room for doubt whether the
cause might not be political prejudice-the
very cause which this law was intended to ex-
clude. In the kindred case People VS.. Fire
Commissioners III New York, 445) che court
expressly says that the fact that some other
man than the accused, or more congenial TO the
a.nfH~a