The charter of the city of Pawtucket, § 7, clause 7, provides that the city council may "remove from office for incapacity or misconduct any officer elected or appointed by them." Charges of official misconduct having been made against an officer, the city council appointed a committee to hear all parties and report the result of such hearing. Subsequently the committee made a report to the council and the testimony taken by it was read, whereupon the council passed a vote finding the officer guilty and removing him from office. Notice had been given to the officer of the taking of the testimony before the committee, but no notice was given to him of the subsequent proceedings before the council. Held, that as the officer was not notified of the proceedings before the council for his removal from office so that he might be heard on the question of his removal, the proceeding was not such a trial as is contemplated by the charter and must be quashed. In the absence of any statute modifying the common law procedure on certiorari, a report of the testimony before the tribunal below forms no part of the record to be sent up for review.
PER CURIAM.
Though notice was given to the petitioner of the taking of the testimony before the committee of the city council appointed for that purpose, the record does not disclose any notice to him of the proceeding before the council for his removal from office, so that he could be heard on the question of his removal. Without such opportunity to be heard the proceeding was not such a trial as is contemplated by clause 7 of the charter of Pawtucket. For this reason, we are of the opinion that the proceeding must be quashed.
We have no statute modifying the common law procedure on certiorari. At common law, the writ of certiorari brings up for review nothing except the record proper of the proceeding, of which the evidence before the tribunal below, strictly speaking, forms no part, and which it is, therefore, under no obligation to send up as a part of the record. Hannibal St. Joseph R.R. Co. v. State Board of Equalization, 64 Mo. 294, 308; People ex relat. Whitney v. Board of Delegates of the San Francisco Fire Department, 14 Cal. 479; Wilmington Steamship Co. v. Haas, 151 Pa. St. 113. In the present instance, the report of the testimony before the city council has been sent up as a part of the record. While it is not our province to review on certiorari findings of fact, it may not be improper for us to suggest, that an examination of the testimony shows that the alleged misconduct of the petitioner related to transactions which occurred prior to his present term of office, and, moreover, that it does not appear by any competent evidence that there was any connection between such alleged misconduct and the action of the petitioner in his office of assessor.