People ex rel. Spain v. Coyle — 55 A.D. 223

Majority

p. 223

The People of the State of New York ex rel. Edward H. Spain, Appellant, v. Mark J. Coyle, as Commissioner of Public Safety of the City of Troy, and Others, Respondents.

Headnote

Commissioner of public safety in cities of the second class &emdash;he may consider charges of offenses committed prior to the creation of the office &emdash; the charter of cities of the second class is not retroactive.

The commissioner of public safety in cities of the second class has jurisdiction to hear and determine charges preferred against a member of the fire department of his city for offenses committed prior to January 1, 1900, the date of the creation of the office of commissioner of public safety.'

A statute changing the tribunal before which such charges are to be heard is not retroactive, as it does not affect the offense itself or the extent of the penalty.

Appeal by the relator, Edward H. Spain, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Rensselaer on the 1st day of June, 1900, denying the relator’s motion to make absolute an alternative writ of prohibition, and authorizing the respondent, Mark J. Coyle, as commissioner of public safety of the city of Troy, to proceed in the matter or proceeding pending before him against the said relator, as referred to in the said alternative writ, the same as if the alternative writ had not been issued, upon giving the said relator two days’ notice in writing of the hearing and trial of the said charges and proceeding. <■

John T. Norton, for the appellant.

Thomas 8. Fagan, for the respondents.

The relator is a member of the fire department of the city of Troy. Charges of misconduct in office were preferred against him to the commissioner of public safety of that city. The misconduct is alleged to have occurred in November, 1899, and the charges were laid before the commissioner of public safety in March, 1900. To prevent a hearing upon these charges by or before the commissioner this writ of prohibition was sought and denied at Special •Term. The only ground upon which the application for the writ was based is the claim of the relator that the commissioner of public

p. 224

safety has no jurisdiction to hear and, determine as to any misconduct occurring prior to January 1, 1900, the-date of the creation of this office and the transfer to .the commissioner of public safety of the powers and jurisdiction in this respect'theretofore lodged with- and exercised by the board of fire commissioners under the charter of the city of Troy. It is not claimed that the transfer of such jurisdiction is not clear or complete. It is not claimed that the right to hear and determine charges of misconduct occurring prior to January 1, 1900, still remains with the old board of fire commissioners. It is admitted that their powers in this regard were extinguished January 1, 1900, when the act for the government of cities of the second class went into effect.^[1] it is not claimed that the new act created any new liabilities or penalties or abolished any old or existing liabilities or penalties, either in terms or by implication. It is claimed, however, that this change of tribunal for the hearing of charges of misconduct operates as a general amnesty as to all misconduct occurring at any time prior to January 1,1900, because there is no existing tribunal in which a hearing can be had.

I see no "good reason in support of this contention. The change ■of the person or persons to hear and determine is competent, and the power to make such change is admittedly in the Legislature; it in ho way affects the rights of the offender. In no proper sense can it be claimed that such a change 'of tribunal for hearing past offenses is retroactive. To be retroactive it must affect the offense itself or increase or diminish the liability or penalty. This act, does none of these and is express in its terms against any amnesty for offenses committed prior to the time the act is to take effect. ■ The words of the act^[2] are: “ Such repeal shall not affect any right already existing or accrued, or any liability incurred by reason of any violation of any law heretofore existing.” ,

The order of the Special Term should be affirmed, with ten dollars costs and disbursements to respondent.

All concurred.

, Order affirmed, with ten dollars costs and disbursements.

* Laws of 1898, chapter 182, section 495:— [Rep.

† † Section 482.— [Rep.