Carlson v. McLyman

74 A.2d 853, 77 R.I. 177, 1950 R.I. LEXIS 65
CourtSupreme Court of Rhode Island
DecidedJune 30, 1950
DocketEx. No. 9055
StatusPublished
Cited by28 cases

This text of 74 A.2d 853 (Carlson v. McLyman) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carlson v. McLyman, 74 A.2d 853, 77 R.I. 177, 1950 R.I. LEXIS 65 (R.I. 1950).

Opinion

*179 Capotosto, J.

This case involves certain proceedings under public laws 1948, chapter 2083, hereinafter called the act. At a hearing in the superior court the trial justice on his own motion dismissed the case for want of jurisdiction. It is before us on plaintiff’s bill of exceptions to that decision and also on defendants’ motion in this court to dismiss the bill.

Defendants’ motion to dismiss the bill of exceptions raises the real question before us. It appears of record that plaintiff was a police officer of the city of Providence and that defendants were members of the bureau of police and fire of that city, hereinafter called the bureau, which had control of the department. In March 1947 plaintiff was charged by the chief of police with immoral conduct and suspended as a police officer pending a hearing by the bureau, which was thereafter held and at which plaintiff appeared with counsel. On May 23, 1947 the bureau found him guilty as charged and dismissed him as a member of the police department. Nothing further was done in the matter by plaintiff until after April 30, 1948 when P. L. 1948, chap. 2083, went into effect. The act expressly provides that it shall be retroactive to the extent of including decisions of the bureau made after January 1, 1947, which was prior to the date of plaintiff’s dismissal from the police department. Although of general application the act apparently was intended to cover the situation in this and a number of other similar cases resulting from an investigation that involved the plaintiff.

In so far as pertinent the act in substance provides that a police officer who has been dismissed by a decision of the bureau from the police department “on charges involving moral turpitude” and considers himself aggrieved thereby *180 may present to the superior court “a petition duly verified setting forth that such decision is illegal in whole or in part and specifying the grounds of the illegality.” The petition must be presented to the court within thirty days after the decision of the bureau. “Upon the presentation of such petition the court may allow a writ of certiorari” directed to the bureau to review its decision, the bureau to appear and make return as specified in the writ within a certain time, (italics ours) The act further provides that the allowance of the writ shall not stay the effect of the decision appealed from; that the court must either “refuse or affirm wholly” the decision brought up for review; and that the remedy specified in the act was not to be construed as exclusive of any remedy or procedure otherwise available.

The nature and scope of the remedy given by the act are in controversy. Plaintiff contends that the remedy therein provided is equivalent to a petition in equity which, within the allegations of the petition, entitles him to a full review both as to the law and the facts involved in the decision of the bureau. On the other hand defendants contend that the review allowed by the act must be in accordance with the settled practice in certiorari. The fundamental question before us therefore is to determine the meaning of the act.

The following rules of statutory construction, which require no citation of authorities, are applicable in the circumstances. The intent of the legislature as found in the language of the statute should be given effect if reasonably possible. It is not within the province of this court to insert or delete words from a statute unless the necessity to do so is plainly evident in order to carry out the legislative intent. In the absence of definition the words of a statute will be given their usual meaning. Even though a statute is held remedial, which ordinarily would warrant a liberal construction of its terms, the court cannot arbitrarily extend the ordinary meaning of its language. Furthermore, we must assume that the legislature was *181 conversant with its own prior legislation, especially where a new statute provides the same remedy that already appeared in another statute wherein the scope of such remedy had been determined by this court. Finally, the court is not concerned with matters of mere policy as its duty is to construe the statute and not to redraft it.

For convenience plaintiff’s contention may be divided into two parts: the nature of the remedy and the scope thereof. In his discussion of the first point plaintiff stresses the fact that proceedings under the act are commenced by petition to the superior court, and he practically ignores the further provision that thereupon the court may allow a writ of certiorari. His argument, as we understand it, is in effect as follows. Until the passage of the act under consideration the power to issue the prerogative writ of certiorari was vested exclusively in the supreme court; therefore the remedy that the legislature actually intended to provide by the act was a review of the bureau’s decision in all its aspects by a petition in equity addressed to the superior court.

The fallacy in that argument is readily discernible. The plaintiff overlooks the fact that jurisdiction conferred on any court by statute may be changed or modified at will by the legislature. The heretofore exclusive jurisdiction of this court in certiorari is to be found in general laws 1938, chapter 495, §2. Since such jurisdiction rests on a statute the legislature unquestionably had the power to grant the same jurisdiction, in whole or in part, to any other court of its choice. It would have been otherwise and in line with plaintiff’s argument if jurisdiction in certiorari were vested in this court by the constitution, as for instance its final revisory and appellate jurisdiction. See article XII, section 1, of amendments to the constitution of this state. MacKenzie & Shea v. Rhode Island Hospital Trust Co., 45 R. I. 407, 411.

Plaintiff further contends that if the act merely gives him the right to a review of the bureau’s decision by certio *182 rari and not by a petition in equity then the legislature engaged in an idle gesture and passed a needless statute as. he already had the right to apply to this court for such a writ. The soundness of the contention depends upon whether the issuance of the writ by the superior court is mandatory or discretionary. While the act states that the superior court may allow a writ of certiorari it does not necessarily follow that the issuance of the writ is thereby left to its discretion. We concede that the ordinary meaning of the word “may” is permissive and not compulsive; yet whether it should be given the latter meaning and construed as “shall” in a given case depends on the intent of the legislature as ascertained from the language, the nature, and the object of the statute. Nolan v. Representative Council, 73 R. I. 498.

The act here is in essence a special statute which apparently was passed to give plaintiff and others in a similar situation a remedy different from the one available to them under a petition for certiorari to this court. In substance and effect it gives to an aggrieved party an additional remedy, namely, a right of review by certiorari in the superior court.

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Cite This Page — Counsel Stack

Bluebook (online)
74 A.2d 853, 77 R.I. 177, 1950 R.I. LEXIS 65, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carlson-v-mclyman-ri-1950.