Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1909-08-28
NELSON LOSES.
Portland Fireman aDischa rged For In
efficiency Must Remain Out.

| Frank Nelson, Pet1tIOSler, VS.. Ioootfu
of Engineers of Portland Fire Depart
mcnt,
Rescript by King, J. .
Petition for writ of certiorari to
uuash the proceedings of the Board OF
Fin gineers of the Fire Department of
the City of Portland relative to the
| removal of the petitioner as perma-
nent member of said Fire Department.
The case is before the law court on
exceptions by defendants to pro forml
rulings of the presiding. justice, to-
gether with stipulation by the par
ties, and the real question here is
whether the record of the proceedings
complained of, as shown by the copy
thereof contained in the defendants
answer, is a sufficient defence to the
petition.
BY the provisions of Chap. $50, Pri-
waite and Special Laws of 1907, meni-
hers of the fire department of the city
of Portland were subject after hear
ing to removal at any time by the
board of engineers, subject to the APP
prevail of the committee on fire de-
| partment, for inefIiciency or other
1 cause"
/
err and hearing, at which he was
present in person and represented by
| his attorneys, and had Il full oDpor-
tunity to hear all the witnesses against
him, and cross examine them, and tes-
titled in his own behalf, tho. Board of
Engineers voted unanimously for his
removal for inefficiency, and their ac-
ton was approved by the Committee
on Fire Department.
| The gist of the petitioners conten-
ton is that the notice served upon him
contained only charges of ine!l1ciency
based upon certain alleged violations
OF the general orders of the fire de-
partment; that under that notice the
Board of Engineers could not legally
have found him inefficient Tor any
other cause, and accordingly thei.'
| finding is to be construed that he was
found inefficient only in respect of those
IaHeged violations of general orders;
land that the record in question is not
Isufiicient to support such a finding be-
cause it does not allege that there were
in fact any such general orders.
| Admitting, but without so deciding,
that to support removal of the Pc
|
on the alleged violations of certain
specified general orders the record to
show that such orders existed, still an
examination of the notice served shows
Enthusiastically that the ineliiciency
charged against the petitioner was
not biased wholly upon the infrac-
tons of these alleged general orders"
| as he claims.
On the contrary, the notice express
| ly sets out that his inefticiency con-
sisted also Gin that you are generally
| inefficient, incompetent and unSkillful
| in tire performance of your duties at
| fires; and of your general inability to
perform the duties required of you by
your said position This language is
explicit. 1t charged the petitioner with
inefficiency because incompetent and
unskillful at fires, and because of gen
eral inability To perform the 1utics re-
quired of him in his position.
1t appears also from the record that
J the Board Of Engineers, as the result
of the hearing. decided unanimously,
not only that the charges of Violating
the general orders, as set out in the
notice, were true, but also that the
to perform those duties, Being the du-
ties incumbent upon him to do and
perform in his position as a permanent
Fireman of the city of Portland
The, petitioners contention, therefor,
that under the notice served on him he
could not have been tried and con-
victed for inefficiency based upon any
other ground than the alleged viola
ton of the general orders cannot be
sustained.
He further complains in argument
that the record is defective 'in that it
does not state the facts upon which
the Engineers based their ruling" In
other words he claims that the record
should show the evidence upon which
the Board of Engineers decided the
question of his inefiiciency in order that
this court may determine if it was suf-
ficient to support their decision.
Such is not the Office of the writ Of
certorari 1t lies only to correct err
rors in law, and not to review and re-
wise the decision of Il subordinate tri-
bunal of question of fact submitted
to it's judgment
Whether the petitioner was inefficient
to perform the duties of the position
| from which he was removed is a Ques-
! ton of fact. The Board of Engineers
| had jurisdiction under the statute to
| decide that question. 1t was decided
by them, after a hearing at which the
petitioner was present and heard and
examined the witnesses against him
and testified in his own behalf, and
their decision of that question of fact
| is final, and cannot be reviewed under
a writ of eertiorari.
The exceptions therefore, must be
sustained, and the petition for the writ
| of certiorari dismissed in accordance
| with the stipulation of the parties.
| EXCEPTIONS SUSTAINED.
PETITION DISMTSSEn