The Portland daily press., 1884-07-29

remark of the Mayor, I'm this case Won are
not called upon to vote as to whether every
reason have submitted is fully sustained by
the EVIDENCE, &C, shows that there were no
other charges in qnestion-and the action Of
the Aldermen Immediately following this in
the record shows that they SO understood it,
Alderman Gallagher moved, 'that We vote on
each charge specifically" The majority of
the Aldermen did not see fit to do this, as they
were prepared to sust ain them all, and the
Mayor having removed the petitioner after the
hearing for all the reasons "snbmitted" they
voted to concur in that action. The final vote,
as recorded by the City Clerk, does not speci-
hcally mention the charges, but when taken
IN connection with the rest of the record
leaves no reasonable doubt as to the basis of
the Aldermen's action. We submit that this
ls not Case where the action of the Court is
to be governed by strained construction of
the record OF a municipal body, not acting ac-
cording to the course of the common law, and
not accustomed or to be expected to make up
ITS record with the fulness and accuracy with
which the record of a Judgment of Court of
law would be made up. On the contrary, this
Is a Case when the petitioner is bound to show
that he is, in fact, actually aggrieved, not that
the record is capable of construction which
renders it possible to argue that he was SO ag-
grieved.
III such course was to be accented, no
records OF municipal officers could stand, IS
they furnish at the best mere outline OF the
proceedings. As said by Judge Dennis in
Fairbank v. Aldermen of Fitchburx, 1872
Mass, At: 'In Cases of this character it Is
particularly desirable to deal with the sub
stantial Justice of the case, untrammelled by
detects in the records or in the pleadings."
The merits of this case are involved in the
matter contained iu the point first mentioned
Here v as an officer charged with a general
neglect OF the duties of his Office and with spe-
cihc acts OF maifessance, showing gre at lack of
judgment and of fitness to administer the af-
fairs OF his department He was fan Their
charged with two separate acts OF bribery and
grave offence against the law in altering a
complaint and warrant in vital particular
after TIE complaint was signed aud sworn to.
He had bad full hearing on these charges
before the only tribunal com Detent to pass up-
on them, and after such hearing he had been
removed.
The only question which any court would
consider, when asked to set aside these pro-
ceedlngs, would be, what was in fact the iudg-
ment OF thatltribunal upon these charees-were
they sustained oy not-not merely does the
record show IL fully, but what was the fact.
Upon this question he answer of these re
spondenta IS conclusive. They say, whatever
the record may or may not show, our judg-
ment was upon the evidence that these charg-
es were sustained, and that the petitioner was
guilty OF taking brides as we'll as OF the other
acts specfed, and upon that judgment they
acted IN voting to remove him. What claim,
then, has the petitioner for the favorable ac-
ton of this Cour?
Convicted OF bribery and malfeasapce in of
ice by the only tribunal competent to try him
is he entitled to be replaced in office because
the record OF the proceedings did not stats the
whole truth?
Mr.. Libby then cited Massachusetts cases TO
the effect that the Court cannot upoa a writ of
certlorari examine into the merits OF the csag
and set aside the verdict as against evidence.
This Court. he said cannot set aside the judg-
ment OF the Mayor and Aldermen upon these
charges. 1t will not review the evidence II
can simply say whether he charges justified
the rem val, If in the judgment OF the Mayor
and Aldermen they were proved at the hear
ing; ana on that point we fear no unfavorable
answer. Bribery is not a recommendation to
any asDlrant for public trust 1t is a legal
ground for removal. The important question
then comes up as to the right of the respond
enbs TO supplement- the record by that ans YER
and as to the effect OF the answer when made.
me reasons which have led the courts to
hold that the record, as first made up is not
conclusive, but may be supplemented by a fur
Their return, are apparent. II this were not
the case, inexperienced recording officers might
place IN Jeopardy important public interests
and delay indefinitely important action on
matters of great moment. The proceedings of
municipal boards would be hedged in by tech
nicaities which would destroy the efficiency
and defeat the objects for which they are es-
tablished. The strictness of ordinary legal
proceedings cannot be expected in the record
of their action. Some allowance must be
made for their inexperience and lack of legal
knowledge. when it does not touch the merits
of their action.
Mr.. Libby cited numerous authorities in
Massachusetts, and Maine to the effect that the
answer to petition for certiorari is conclusive
as TO all matters of fact within the Jurisdiction
OF the respondents, and that in ADDITION to
their return the respondents may allege and
prove extrinsic facts to show that substantial
justice does not require the proceedings should
be quashed.
Petitioners counsel complain that the re-
turn of respondents uses the word Judgment"
III place OF finding, and say that it is an eva
SIGN OF liability and an attempt to deprive
them OF the remedy they would have in case
the word finding" had been used, We snb-
nit that the objection is hvpercritical and un-
reasonable. The answer is couched in up-
mlstakaole language and in phraseology which
IL both accurate and appropriate. The word
Judgment" involves fading. The language
OF the return is sit was the Judgment of the
Mayor upon the evidence" 'aBd the
same Judgment was formed upon the evidence
by the Aldermen who voted 10 advise and con-
sent to said removal, land it was upon that
Judgment they acted" sc.
Inere can be no question as to what these
words mean. They include finding of fact. a
conclusion reached by means of evidence. To
complain of the form OF the statament ia To
cavil about words, and ignore their real signifi.
canoe. What element that goes TO make mn
valid Judgment and legal action of the BOARD
is wanting, when the Mayor and Aldermen
certify that upon the evidence their Judgment
was mat the petitioner was guilty of the
charges preferred, and that upon that iudg.
ment, so formed, they acted in removing and
IN advising and consenting to the rem0vaI
The Judgment of legally constituted tribunal
satisfied by evidence of the fact of guilt as al
legged, and judgment of removal from office
based upon such proof of uilt;-would the
word finding" add anything to this. or il
there any element wanting which goes to make
up the conclusive validity of judgments of
courts? Of what avail is it for the petitioner
TO complain that the Judgment was not enter
ed in the record ? The respondents NAV
amend their record or may record their iudq.
ment name pro turac, or they may act anew on
the matter.
If the Mayor and Aldermen believe on the
evidence that the petitioner is guilty of
bribery and other offences specified, the action
of this Court as to the record cannot prevent
their taking action anew. And if that ia 40.
what advantage is there in issuing the writ?
Ii will not restore public confidence in the
petitioner or prevent the Aldermen from re-
moving him for bribery.
The counsel for petitioner further complain
that the return is signed by the Mayor and
hVe Aldermen only; they were the only ones
WHO could make the return, as the others did
not concur in the removal, and could not.
therefore, certify to the grounds on which it
was made. 1t is the action of the Mayor and
these five Aldermen that the petitioner asks to
review; aud as they constitute the majority of
the Board, and could not compel the other two
to join with them in this answer, thew were
cnmpetsnt, we submit to make it in their own
behalf.
Mr. Patnam replied at some length going
over and celebrating some of the points refer,
red to by Judge Goddard. He claimed that
the statute of 1873 was aimed at certain
practices and abuses carried on under and bv
virtue of party spirit. He said that in order
to work out the beneficial results intended for
it, in view of the fact that it had got TO stand
up against and prevail over the ingenuity and
power of party the Cont must see 10 # that
the statute was not defeated directly nor in
directly by evasion.
The court took the case under advisement
and no decision will probably be reached at
this session.
Nominations by the Governor.