The Portland daily press., 1884-05-19

Petition for n Writ of CerIiOrnri-A IN err
ing Ordered June IOth.

Cumberland, being the term thereof begun on The
second Tuesday Of april, 1884,
Benjamin +. Andrews, of said Portland respect
fully represents that on the 31st day of March
1883, he was appointed Marshal of said city OF
Portland by the Hon. John W. Deering, Mayor OF
sAd CITY, with the advice and consent Of the Alder
men thereof, to hold said Office during good be-
naVlor; that thereafter having filed his bond duly
approved, he took and subscribed the Qualifying
oath on the I'd day of April, 1888, and thereu pom
entered upon the duties of said ofcc that he con-
tinued without interference faithfully to discharge
the same and did behave himself we'll therein until
the LIST day of May, 1884; that he has never re-
signed said Office nor at any time refused to per
form the duties thereof. and could not and cannot
lawfully be removed therefrom except according
TO the provisions of an act approved February,
3, 1878, being chapter Is of the special laws Of
1870, entitled AN act to amend chapter 346 of
the special laws OF 1877 entitled act to promote
lands, -
1884. he received the following communication:
CITY OF PORTLAND, MAYORS OFFICE,
Benz. r. Andresos, City Marshal:
have concluded it to be my duty to ask the advice
and consent of the Board of Aldermen to your re-
moval from the Office Of City Marshal
In compliance with the law a meeting of the
Board viii be held in their in the City Build
ing on Thursday, the twenty fourth day of the
present month, for hearing. have placed in the
hands of the City Clerk my reasons for making this
request, with instructions to furnish you with a
copy upon application, but otherwise 10 withhold
that meeting.
Very respectfully,
MARQUIS F. KING, Mayor.
That he accordingly attended the meeting of said
Board OF Mayor and Aldermen held at the Alder
mems room in said Portland, on the evening Of
April "a, 1884, and at two adjournments thereof,
held April ~ and April 3d. 1884, at the same
place, with his counsel and on said last session he
introduced evidence in his own defence all which
appears by the copy of the records of said Board,
which are hereby made a part of this petition.
That on the same evening, and during said last
named meeting, after the evidence had been closed
and the arguments of his counsel and of the City
Solicitor had been concluded, the Honorable Mar
quis f. King, Mayor of said city resumed his chair
which he had vacated on the commencement of
SAID proceedings, at the first named meeting held
April "a. 1884, and thereupon proceeded to ad-
dress said Board in the language contained in the
record aforesaid, and then stated that he removed
your petitioner from his position City Marshal
and said that said Board would be called upon to
vote on the question whether the Aldermen advised
and consented to such removal.
Whereupon the City Clerk called the roll for the
ayes and nays on the question whether the Alder
men advised and consented to the removal of your
petitioner from the position Of City Marshal, and
on that question the Aldermen voted to advise and
consent TO said removal yeas five and nays two all
which appears by said record.
And your petitioner further respectfully repre-
sents that about o'clock on the morning o. NAV
1, 1884, he received from the messenger of said
city the following notice;
CITY OF PORTLAND, CITY CLERKS OFFICE
To Benjamin F. Arsdretos, Esq:
Dear Sir:-I beg to transmit II your information
and guidance, the following action of the Board of
Mayor and Aldermen at their meeting held April
20, 1884:
1.-THE Mayor then removed the marshal from his
position as City Marshal and the City Clerk called
the roll for the yeas and nays on the question
whether the Aldermen advised and consented to
such removal.
"On the question the Aldermen voted yeas 8, nays
2, and Benjamin f. Andrews was accordingly re-
moved from the position of City Marshall
GEoRGE @. BURGEss CITY Clark
And your petitioner further respectfully repre-
sents that it nowhere appears by said records that
said Mayor removed, nor in fact did said Mayor
remove said petitioner from the office OF City
Msrshal aforesaid for ineficiency or other legal
cause; nor does it appear by said records that the
Aldermen Aforesaid advised and consented nor in
fact that did Aldermen advise and consent 10 said
petitioners removal for ineficiency other legal
cause.
And your petitioner protesting that the matters
set out In the last paragraph true nevertheless
further represents and alleges that even if it could
be properly claimed by any infecen whatever.
that the said Mayor removed or attempted to re-
move your petit Toner from said Office by reason of
anything contained in the communication of said
Mayor, submitted to the Board of Aldermen at
said meeting ON the oath day of April A. D.
1884 yet your petitioner says and alleges that the
method OF proceeding by the said Aldermen with
because it does not appear by said record whether
or not majority of said Aldermen concurred in
any OF said reasons which were sufficient to justify
the removal of said Marshal in accordance with the
statutes aforesaid; that and for aught that ap-
pears by said record, and for aught that can Be
known by your petitioner or by said Mayor or BY
any other person whatever, it may be that none Of
the reasons aforesaid received the assent or con-
currence OF a majority of said Aldermen. Where
as, your petitioner further says and alleges that the
proceedings of the said Aldermen should have been
in such form as to show, specifically whether or
not majority of said Aldermen concurred in or
assented to any one more of said reasons SO sub
mitted in the communication aforesaid and in
wnicn Oh SAD reasons said majority Of said Board
so concurred and assented.
And your petitioner further represents and alleo.
es that there never was any hearing whatever upon
any of the matters set out in the com nlunieaion Of
said Mayor addressed to said Board said meeting
thereof on the Both day of April 1884 all of which
appears by said records.
BY reason OF all whereof said proceedings of said
Mayor and Aldermen were and are null ana void,
and ought to be so adjudged.
And your petitioner further represents that he
attended personally the first regular meeting of said
Board Of Mayor and Aldermen held after said at
tempted removal, to wit, on the 9th day of May
1884 and the adjournment thereof on the 9Th dav
of May, 1884 and presented to said Board notice
signed by him, OF which the following is a copy:
To the Honorable Mayor and Board of Aldermen of
the City of Portland
The undersigned is advised that the attempted
proceeding TO remove him from the office of Mar
shall of the City of Portland is invalid void and of
no enc It and contrary to law because it does not
appear that the attempt to remove him was for in
efficiency, or any other cause nor for what cause
the attempted removal has been made. Therefore
marshal of said city.
Nevertheless being unwilling to do any act which
might produce confusion in the police department
by personal Intervention in its affairs he forbears
from such personal Intervention but respectfully
represents to you that he is prepared to continue
the duties OF said office as required by law.
BENJAMIN +. ANDREWS.
And the same was then and there read to said
board in open session, appears by the record OF
said board.
And your petitioner further respectfully repre-
sents that he is greatly damnifed and injured by
said unlawful proceeding of said Mayor and Alder
men.
Wberefore vour netit;orar ,roys .h,. ho,,o-oL,u
court to issue its writ of ceriorari directing said
mayor and Aldermen to bring up and certify their
said proceedings in full, to the end that the same
may be quashed and declared void by this honor
able court and for all suitable ORDERS DEGREES and
Judgments as may be necessary to fully aHash and
render nugatory and void the proceedings deter
limitations and acts of said Mayor and Aldermen in
the proceedings aforesaid.
Dated at Portland aforesaid on the seventeenth
day of May, 1884.
BENZ. f. ANDREWS.
William l.. Putnam.
Charles W. Goddard solicitors.
The Court-Judge Haskell-ordered notice
to be served on the Mayor and City Clerk by
copy fourteen days before June 10th when the
case will be heard and determined. AS either
party is entitled to take exceptions to Judge
Haskells decision, when made, it may be the
case will, on June 10th be taken up to the full