People ex rel. Packwood v. Riley

be made by any person against any member oí the police department or fire department, that such member has been negligent or derelict in the performance of his official duties, or is incompetent to perform the same, or is guilty of some delinquency seriously affecting his general character or fitness for the office, the charge must be in writing in the form prescribed by the rules and regulations of the commissioner of public safety, and a copy thereof must be served upon the accused member. The commissioner shall then proceed to hear, try and determine the charge.” The finding quoted follows the language of the statute. We must examine the evidence claimed to have sustained the charges, and the circumstances and conditions precedent, which lead up to such charges being made, the latter as bearing upon the allegation of relator that he did not have a fair trial before a fair and impartial tribunal. In People ex rel. Shannon v. Magee ( 55 App. Div. 195 ) we learn that the removal there under consideration was against the weight of evidence, while in People ex rel. Miller v. Elmendorf ( 51 App. Div. 173 ) the order of removal was reversed because the trial was not impartial and the facts showed that the'individual constituting the tribunal was prejudiced against the officer removed. The history and facts are, briefly, as follows: The relator had belonged to the police force of Amsterdam about nineteen years on the 1st day of January, 1920, and had been chief of police since 1909. In 1917 David Aiken, the son of Theron Aiken, mayor and complainant in the proceedings, had trouble with the police department of the city of Amsterdam where the Aikens then lived or had lived. The evidence shows, ■without contradiction, that from that time on, Aiken, Sr., commenced and continued a systematic attack on relator orally and with circular and pamphlets, announcing that he would get him; in this he was supported by the commissioner, he giving out some of the pamphlets so prepared by Aiken. Raids were staged in which Messrs. Aiken and Riley were prominent and took part, connecting relator in a negative sense, by alleging the non-action of the police department. It appears that the complainant was sued upon some claim and a judgment was obtained against him upon which a body execution would issue, and he went to relator and asked him to get him $500, which he refused to do, and complainant was afterwards apprehended and confined upon such execution; complainant denies that he made such demand and question of fact was there presented for fair determination by a fair and impartial tribunal, with all of the circumstances in favor of relator’s version except the said denial. Complainant made his campaign for mayor in the fall of 1919, and used as one of his arguments the alleged malfeasance in office of relator and asserted that if elected he would remove, or have removed, from office this relator. Aiken was elected and took office January 1, 1920; he appointed John J. Riley the commissioner of public safety. It is a fair inference, and the record shows nothing to the contrary, the first official act of the commissioner was toward finding some way to remove the relator. It was found at that time, January 7, 1920, that section 28 of the rules and regulations made by a former commissioner of public safety, and the one under which such proceeding must be instituted, read as follows: “ Section 28. No charges preferred against

building and on call. The 2d that he failed to keep a record in a booh of all cases and legal proceedings in his department and record of services rendered by himself or other policemen chargeable to the county of Montgomery. The evidence of himself and the former commissioner of public safety shows that he rendered reports, in writing, if not in book; that he, himself, did no work chargeable to the county of Montgomery, and that the policemen rendering such services made up their bills and filed them with the proper department. The 3d that he did not keep a book containing inventory of articles taken from persons arrested, outside of dangerous weapons; there were two such occasions and his evidence shows what he did with the articles, delivered them to the proper owners and made a list of them on paper. The 4th that he neglected to deliver over to the sheriff weapons of different kinds, dangerous in character and taken from people arrested. It appeared those weapons were at the police headquarters, except two which the officers had and were using, and that without his knowledge: the balance he produced before the commissioner upon this hearing. The 5th that he did not suppress, break up and destroy all the gambling places and apparatus in the city of Amsterdam. This was a city of between 30,000 and 40,000 inhabitants. Relator swears that he investigated all complaints, and with the former commissioner made raids and smashed machines. The issue made here would present one of fact. A fair and impartial tribunal might reach the conclusion that in a city such as Amsterdam it is easier to talk reform than to actually effect reform. The 6th, 7th, 8th, 9th, 10th and 11th paragraphs all charge neglect of duty in suppressing gambling. These charges purport to carry the time down to December 30,1919. The evidence does not sustain the charges, as a whole. The only occasions within the thirty-day limit were those inspired by complainant and his friends. Relator may not be blameless; the question is, did he have a-fair trial? Is the weight so against him that his word that he did all he could would not be taken, at least as a plea in abatement, and mitigate the punishment to be dealt to him. The 12th charge is that for money he was willing policemen should give protection to picnics and fairs outside of the city limits; his explanation was that short hour men were sent or permitted to go and that they received and kept the compensation; that it was nothing to him and the practice was permitted by his superior officer. The 13th that relator, for pay, offered to furnish an applicant for examination as dairy inspector copies of the questions that would be asked of him on such examination. This was a civil service examination. Relator said he did not have a copy of the questions, could not get them if he wanted them; that the civil service commissioners were honorable men. Why were not these men called and some light thrown upon the examination in question? The 14th count, stripped of all its useless verbiage, charges relator with having committed adultery on the 22d day of April, 1918, with a woman who was not his wife, and that he did not appeal from the final decree. The righteous indignation this charge was expected to inspire in the tribunal presided over by Commissioner Riley was founded upon the fact that, if true, it violated the Penal Law of

to the street sweeper if he likes.” These are some of the incidents that show this trial was had under circumstances that were not likely to give the relator the full and fair protection contemplated by law and established rules of evidence. I am constrained to reject the doctrine laid down in 55 Appellate Division, 195, as not applicable to the conditions appearing in this ease. I believe that People ex rel. Miller v. Elmendorf ( 51 App. Div. 173 ) more nearly accords with substantial justice and the preservation of the rights of accused persons. (People ex rel. McMorrow v. Roosevelt, 23 App. Div. 533 .) People ex rel. Tappin v. Cropsey ( 178 App. Div. 180 ) is very similar as to facts and principles here involved. It was affirmed in the Court of Appeals ( 224 N. Y. 564 ). The question of the weight of the evidence is not here considered with the purpose of making a decision resting upon that ground alone; but rather to advance the suggestion that a fair and impartial tribunal could, from the evidence, reach a different conclusion than was reached in this case. The insufficiency of the evidence, its lack of weight preponderance, have, however, furnished grounds for reversal in many of these cases. (People ex rel. Shannon v. Magee, 55 App. Div. 195 ; People ex rel. Eggers v. Bingham, 121 id. 593.) The findings and order of the commissioner of public safety of the city of Amsterdam should be set aside and relator restored to his position with pay since his suspension and fifty dollars costs of these proceedings. Woodward, J., concurs.