People ex rel. Cook v. Board of Police — 40 Barb. 626

Majority

p. 626

The People, ex rel. Cook, vs. The Board of Police.

Headnote

The relator was charged with neglect of duty as a member of the Metropolitan Police, by reason of being absent from, duty from October 26, 1861, to Jaunary 8, 1863. On this charge he was convicted, on a trial before the Board of Police. As the rules stood at the time of such conviction, there could only be a conviction for absence from duty without lease. Held that the effect of the conviction was that the relator was convicted simply of being absent from duty, for the period mentioned; and that the conviction was for a matter which, at the time, constituted no offense.

And that, although, so far as the proof was concerned, it perhaps would be incumbent on the accused, after absence from duty had been shown, to prove that he had leave, it was absolutely necessary that the record should show a conviction for some offense punishable by the board convicting him.

p. 627

Held, also, that conceding that, by the law as it stood prior to its amendment, absence with or . without leave constituted an offense to which a penalty was attached, yet that such law having been amended so that absence with leave constituted no offense, no conviction could be had, after such amendment, for an absence with leave,

It is wholly inconsistent to find an officer guilty of neglect of duty for absence during the time he was unlawfully dismissed from service. He is not guilty of any offense for being absent at such a time. Per Leoitabd, J.

STEPHEN L. COOK, the relator, in October, 1861, wag charged by acting Captain Blakelock, of the Metropolitan Police, with “neglect of duty," on the ground “That said Cook absented himself from the 6 o’clock p. m. roll call, October 18th inst. without leave, and did not report for duty until the morning of October 21st.” The complaint or charge was made to and heard by the board of police, on the 26th October, 1861, without the knowledge of said Cook, no notice thereof having been given to him, and on such hearing, although the fact that Cook was ignorant of these charges was made known to the board, he was found guilty, and it was ordered that “he be, and is hereby removed from office in police force.” When Cook was informed of the action of the board, after making several ineifectual attempts to have a hearing, he in May, 1862, removed the proceedings of the board into the supreme court, and the matter was heard in January, 1863, and a decision was rendered reversing the judgment of said board, and restoring Cook to his former position in the department. A copy of this order was served on one of the commissioners on the 8th day of January, 1863, and Cook was thereupon again ordered to duty. On the 12th day of January, 1863, the relator was tried for neglect of duty, for three days’ absence in October, 1862, and was fined three days’ pay therefor. After this trial was concluded and judgment rendered, a notice was again served on Cook, charging him with “neglect of duty,” in being absent from the 26th day of October, 1861, (the day when the board dismissed him,) until the 8th day of January, 1863, (the day when the supreme court restored him.) The board, on the 14th of February, 1863,. found the

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relator guilty of the charge, and fined him 439 days’ pay; just the number of days they had deprived him of his position. These proceedings were removed to the supreme court by the relator, by certiorari. It appeared from the return that the following rule of the board of police existed for more than two years prior to February 11, 1863, viz: “Unless in case of sickness contracted in the police service and properly certified to by a police surgeon, absence from duty of any sergeant, patrolman or doorman, whether with- or without leave, shall be followed by forfeiture of pay for the time absent.” Which said rule was, on said 11th day of February, 1863, amended, so as to read as follows: “Absence from duty of any sergeant, patrolman or doorman, without leave, shall be followed by forfeiture of pay for the time of such absence, reprimand, fine, or dismissal from the force, in the discretion of the board. In cases of absence on account of sickness, when properly certified by a police surgeon, pay may be forfeited, or half or full pay allowed in the discretion of the board.”

The case was heard at the special term before Justice Peckham, who delivered the following opinion-:

Peokham, J. “This is a common law certiorari, to review the judgment of the board of police, deducting by fine the pay -of the relator, as a member of the police force from the 26th day of October, 1861, to the 8th day of January, 1863. It appears by the return to the certiorari that on the 19th day of January, 1863, the then superintendent of police, John A. Kennedy, preferred to the board charges against said Cook, of “neglect of duty,” and specified as the ground thereof, that said “ Cook was absent from duty and from the station house of the 9th precinct from October 26th, 1861, to the 8th day of January, 1863.” It appeared also by the return that the relator had been removed from the police force by the judgment of the board, in the fall of 1861, and I think just .prior to the alleged absence; that the judgment

p. 629

of removal continued in force till just before the preferring of the present charge, when the order of removal was reversed by this court, and Cook returned to his prior position on the force. The substance of this charge, then, is that the relator has been guilty of dereliction of duty in not serving as a member of the force while and after the board had turned him out, and of this he is actually convicted under charges, and his pay deducted while so absent—absent by express order of the board, not by permission or leave, not by his election or volition, but by the express order and direction of the board. Some question was made on the trial of this charge whether the relator actually reported himself for duty after his removal. In my judgment a totally immaterial question, as the relator had been ordered away, actually removed from office, in fact, though illegally, as afterward adjudged, still, on the positive evidence, it perhaps should be held that he did in fact so report himself, though the officer to whom he claimed to have reported did not in fact remember whether he did or not. The decision of the board would be conclusive on that point. Tet it is clearly proved, undenied and undisputed, that he applied to the board in person, and by several of his friends, repeatedly, to be reinstated, prior to taking steps to set aside the illegal order of the board. His application was refused. It also appeared that the relator had been in no regular business since October, 1861, and had been ready and anxious to resume his position and do his duty in the department up to the time of his restoration. The board seem to have concluded that he did not report for duty, though in all other respects the facts are undisputed.

This, in my judgment, is an entirely erroneous proceeding on the part of the board. Under a claim and pretense of a dereliction of duty, charges are gravely preferred against the relator for not doing what the board had solemnly adjudged he should not do, for not acting as," or discharging the duties of, a member of the police force. “ Charges,” within the meaning and spirit of this act, imply a violation or neglect

p. 630

of duty for which some punishment may be imposed, as was done in this case. But to impose a fine for not doing what the board had ordered the relator not to do —not to act as a member of the force—shocks one’s sense of justice.

It may well be that the relator is not entitled to his full pay while so removed. He may have been temporarily in some business, or. might have been, whereby some deduction should be made. But that question should have been left to be settled in a proper action in the courts, if the board and the relator did not agree. The forms of criminal pro- • ceedings should never have been resorted to for any such purpose, though they may be entirely effectual therefor..

A return to a common law certiorari does not properly embrace the evidence, and though it be in fact returned, as in this case, the court should not re-examine the merits. The board seem to have had jurisdiction of the relator and of the subject matter. The well settled practice of this court should not be violated to afford relief from the hardships of a particular case. There can be no relief, therefore, on the merits.

But on examining the return I find that at the time this fine was imposed the law had been altered. The charge as ' made shows no violation of any regulation or law. The 38th rule of the board, when the charge was made, provided that absence with or without leave, except in a certain case, forfeited pay. But it nowhere apjoears, either in the complaint or the conviction, that this absence was not under that excepted case. This exception or qualification is contained in the body of the rule itself, and not in a separate section. Therefore it must be negatived in the complaint. This rule is perfectly well settled. The conviction is confined in terms to the charge, and therefore adjudged him guilty of no offense. This rule, after the trial had commenced, and before judgment pronounced, was altered. The regulation, as then established and in force, allowed a fine to be imposed only when the person charged was absent without leave. Here

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there is no charge that he was absent without leave, nor was he convicted of any such charge. There was, then, no law when the charge was made, or when the judgment was pronounced, to uphold it. (See Hartung v. The People, 22 N. 7. Pep. 95, and cases there cited.) Though it is perhaps unnecessary to invoke the aid of the rule discussed in that case, as I think the complaint and .conviction equally defective under either rule, so that it is unnecessary to discuss whether the old rule was repealed as to this case.

Proceedings reversed.”

A. J. Vanderpoel, for the Board of Police.

Wm. Henry Arnoux, for the relator and respondent.

The relator was charged with neglect of duty, by reason of being absent from duty from October 26, 1861, to January 8, 1863. Of this charge he was convicted. The effect of this conviction is that he was convicted simply of being absent from duty for the period mentioned.

This conviction was for a matter which at the time of its rendition constituted no offense.

As the rules stood at the time of this conviction, the conviction could only be for absence from duty without leave. The wording of the by-law clearly makes the offense to which the penalty is attached absence without leave. So far as the proof is concerned, it perhaps would be incumbent on the accused, after the prosecution had shown absence from duty, to show that he had leave, otherwise it would be presumed that he had not leave. However this may be, it is absolutely necessary that the record should show a conviction for some offense punishable by the court which, or the magistrate who, convicts. The record in this case, for the reasons above stated, does not show any such conviction.

Conceding that, by the law as it stood prior to its amendment, absence with or without leave constituted an offense,

p. 632

to which a penalty was attached, yet that law having been amended so that absence with leave constituted no offense, no conviction could be had after such amendment for an absence with leave.

[New York General Term,

November 30, 1863.

It is not necessary now to inquire as to how far a common law certiorari brings up the evidence, and as to how far the court will on such certiorari examine into the merits, but it may be observed that, from the opinion of Judge Edmonds, in Morewood v. Hollister, ( 6 N. Y. Rep. 327 ,) and the cases cited by him, it would seem that to a writ of certiorari in cases of summary conviction the whole evidence which applies to the charge must be set out, that the court may judge whether sufficient proof appears on the face of it to sustain every material allegation and to justify adjudication.

I feel constrained, however, to remark that the judge at special term was not too strong in his language, when he characterized the action of the board of police commissioners in this case as a proceeding which shocks one’s sense of justice. I would merely amend his exclamation by saying that the proceeding is such as to shock every man’s sense of justice, excepting only that of the men then composing the board.

It is wholly inconsistent to find an officer guilty of neglect of duty for absence during the time he was unlawfully dismissed from service. The officer was not guilty of any offense for being absent at such time. The judgment ought to be affirmed, with costs.

Sutherland, J. concurred in the conclusion.

Judgment affirmed.

Sutherland, Leonard and Barnard, Justices.]