Lunt v. Davison , 104 Mass. 498 ( 1870 )

Wells, J.

At common law, there was r>o traverse to the return, upon a writ of mandamus. The utmost certainty was required in such returns. For any failure in this respect, the objection was taken by way of exceptions to the sufficiency of the return. If the party suing the writ desired to falsify the return, he could do so only by an action on the case. The English statutes relating to mandamus did not apply to the courts of this country; and such proceedings in this Commonwealth were held to be governed by the common law. Howard, v. Gage, 6 Mass. 462. By the practice act, the action for false return was abolished, and it was provided that “the person suing the writ may, by an answer, traverse any material facts contained in such return, or demur thereto.” St. 1851, c. 233, §§ 51, 52. St. 1852, c. 312, §§ 38, 39. Gen. Sts. c. 145, § 13.

Regarding the exceptions filed by the petitioner in this case as intended for and equivalent to a demurrer, admitting all the facts set forth in the return, the question is, whether those facts _,ustify the removal of the petitioner from his office or appointment as pilot.

From the return of the commissioners, it appears, 1st. that they received evidence, satisfactory to them, of misconduct, carelessness and neglect of duty on the part of the petitioner; 2d. that they thereupon suspended him until the next meeting of the trustees of the Boston Marine Society; 3d. that the petitioner was notified thereof; 4th. that the trustees, at their next meeting, did decide that his commission ought to be revoked; and 5th. that the commissioners thereupon revoked his commission.

This is in strict, literal compliance with the provisions of the St. of 1862, c. 176, § 4, for the removal of pilots for the port of Boston. The objections are, that it does not appear that the petitioner was found guilty of any specific act of misconduct, carelessness or neglect of duty; nor that he had notice of, and opportunity to be heard in his defence upon any complaint setting forth the charge made against him.

The petitioner contends tnat it should appear from the return what the acts of misconduct or neglect were, of which the commissioners had evidence satisfactory to them, in order that the court might determine whether those acts constituted in law each an offence as to justify the suspension and removal. We have no doubt that, in ordinary cases of amotion, this ought to be and is the rule. But the provisions of this statute are peculiar; and we are inclined to think that it was the purpose of the legislature to make the tribunal, therein provided, the final and exclusive arbiter in the matter of removals from the office of pilot. The power, both of appointment and removal, for the port of Boston, is confided to the commissioners, subject to the approval and revision of the trustees of the Boston Marine Society. The causes of removal are very general and indefinite, —•“misconduct, carelessness or neglect of duty.” It is only requisite that the evidence of either of these should be satisfactory to the commissioners. From the nature of the case, this involves not merely the credibility and sufficiency of the proof of the facts relating to the conduct of the pilot, but also the question whether the facts so proved furnish satisfactory evidence of misconduct, carelessness or neglect of duty. The propriety of the conduct of a pilot, in the performance of his official duties, as observed by the commissioners or shown by evidence brought to them, can be judged of best by men having constant familiarity with the circumstances and requirements of the service. If from neglect, inattention, or any want of faithfulness, the service of a pilot should fall short of that which is due to the responsibilities of the position, we think the terms of the statute would authorize the commissioners to regard that deficiency as satisfactory evidence of carelessness or neglect of duty, although no specific act of misconduct should be alleged. The protection against arbitrary removals, without sufficient cause, is to be found in the revision of the action of the commissioners by the trustees of the Boston Marine Society, at their next meeting.

The petitioner was notified of his suspension, and had an opportunity to be heard before the trustees upon the question of his removal, if he saw fit to avail himself of it. We must presume that the hearing before the trustees was fairly conducted ; that the grounds of the suspension were properly laid before them, and were adjudged by them to be sufficient ana proper causes for the removal. We do not think that adjudi cation is open to revision in this court, either upon the sufficiency of the alleged causes of removal, or the sufficiency of the allegations.

This conclusion is confirmed by the provisions, in the same statute, for the removal of pilots at other ports. By §§ 9, 10, any pilot for the ports of Salem, Marblehead and Beverly, or the port of Newburyport, may be removed from office by tht governor and council, whenever the marine societies of those ports respectively shall certify “ that he is incapable of discharging the duties of said office, or is otherwise unsuitable to be continued therein, or that the public interest requires that he should no longer remain in office.” Pilots at other ports are removable at any time at the pleasure of the governor and council.

The subsequent clause in § 4 of this statute, requiring the commissioners to “ receive and hear complaints by and against pilots for the harbor of Boston, and examine into and decide the same,” is a distinct provision from that relating to removals, and, like § 11 of Gen. Sts. c. 52, has reference to other objects. No inference should be drawn therefrom as to the formality of proceedings looking only to the exercise of the power of removal.

Upon these considerations, the court are of opinion that the peremptory writ should be Refused.