People ex rel. Fallon v. Wright

The relator is an honorably discharged soldier, who served as such in the Union army during the war of the Rebellion. His certificate of discharge informs us that his character was good, that he took part in seven important engagements, and that he served with his battery at the siege of Petersburg, Va., from the 7th of July to the 23d of August, 1864. As such veteran, the relator could be removed only for incompetency, and conduct inconsistent with his. position, after a hearing had. The legislature has steadily and consistently provided fór and protected veterans of the late war. In 1884 it was provided that they should be preferred for appointment in every public department and for employ1 ment upon all public works of the state. Laws 1884, c. 312. In 1886 the provision was, in grateful recognition (so reads the act) of their services, sacrifices, and sufferings, extended so as to embrace such preferences even though the veter m should be graded lower than others in civil service examinations. Laws 1886, c. 29, § 1. In 1887 it was still further extended, so as to embrace all the cities, towns, and villages of the state; and failure to comply with the legislative will, both in its letter and spirit, was made a misdemeanor. Laws 1887, c. 464. In 1888 provision was made for the permanent retention in office, during good behavior, of these honored servants. It was expressly provided that they should not he removed “except for cause shown after a hearing had.” Laws 1888, c. 119. This was reaffirmed in 1890, and extended so as to cover veterans of the Mexican war and others. Laws 1890, c. 67. It was further extended in 1892. Laws 1892, c. 577. Finally, in 1894, what alone should be deemed “cause” for removal was clearly defined. The language of the act is explicit that in all such cases “the person having the power of employment or appointment, when the statute provides for a definite term, should have the power of removal only for inconrpetency and conduct inconsistent with the position held by the employee or appointee.” Laws 1894, c. 716, § 1. The intention jealously to guard the veteran’s rights in this respect is further evidenced by the unusual and striking provision that, “in case of such removal * * for partisan, political, personal or other cause except incompetency and conduct inconsistent with the position so held, * * * such soldier so wrongfully removed * * shall have a right of action in any court of competent jurisdiction for damages as for an act wrongfully done, in addition to the existing right of mandamus; the burden of proving such incompetency and inconsistent conduct as a question of fact, shall be upon the defendant.” Thus every intendment is substantially declared to be against the legality of the

The respondent’s power, as was said in People v. Nichols, 79 N. Y. 588 , was “not an arbitrary one to be exercised at pleasure, but only upon just and reasonable grounds,”—a doctrine which was quoted with approval, and reaffirmed in People v. Jones, 112 N. Y. 008 , 20 N. E. 577 . A fortiori should the rules laid down in these cases be applied to the attempted removal of those public servants for whom the people, through their representatives, have evinced such tender consideration. “The proceeding,” said Judge Danforth in the Nichols Case, “must be instituted upon specific charges, sufficient in their nature to warrant the removal; and then, unless admitted, be proven to be true. Defendant might also cross-examine the witnesses produced to- support the charge, call others in his defense, and in these and other steps in the proceeding be represented by counsel. In no other way could the person sought to be removed have a due hearing, or an opportunity to be-heard; and this condition must be complied with before the power of removal is exercised. * * * It follows, therefore, that the proceeding is judicial in its character, and, as a necessary consequence, is subject to review by a writ of certiorari issued by the supreme court in the exercise of its superintending power over inferior tribunals and persons exercising judicial functions.” These observations were made with regard to a hearing under statutory provisions infinitely less favorable to the accused official than those under consideration. They should not only be followed, but emphasized, in a case where, should an action be brought, the burden of establishing the charges to the satisfaction of a jury is by the statute thrown upon the official who makes the removal.

The question, then, is, has the .relator been removed for sufficient cause, after a fair and legal hearing? We are all agreed that this question must be answered in the negative so far as the first charge and specification are concerned. There was here no intentional or substantial violation of the rules established by the commissioners for the government of the city prison. The accusation was founded upon the merest technicality, and was trivial in the extreme. The custom set up in the relator’s answer to this charge was fully established. It was always customary for the warden, in his discretion, to permit visitors to enter the prison without being searched, if, in his opinion, they were proper persons to be relieved from that formality. This custom existed long be

Our conclusion is the same as to the subsidiary specification of the second charge. The commissioner’s order was that the prisoner Herman be removed from the dark cell known as the “cooler,” and returned to the cell which he had previously occupied. The essential part of this order was the removal from the dark cell. There was no special significance attached to the direction to re1 turn the prisoner to his old cell. That cell had no distinctive character as distinguished from other cells of the same class. There was no intention in the commissioner’s order of superseding the warden in the exercise of his general functions nor of limiting him

This brings us to the only serious question in the case,—was the relator guilty of cruel and inhuman treatmen4 of Herman, as charged? If he was, he was properly removed. We cannot agree with the relator’s learned counsel in his contention that incompetency, in addition to conduct inconsistent with the employé’s position, must be shown. It is true that the statute reads, “incompetency and conduct inconsistent,” etc. We think, however, that the clear intention was to treat these phrases disjunctively. Incompetency is one thing. Conduct-inconsistent with the relator’s position is another. A man may be perfectly competent, and yet be guilty of some heinous conduct for which he should be removed. If, therefore, notwithstanding the relator’s competency, he was guilty of what is charged in this connection, his general efficiency should not save him. The question of cruel and inhuman treatment is made up of two elements: First, the alleged keeping of Herman without food; and, second, the actual effect of this deprivation. These elements are interwoven, and cannot well be dissevered. The question is whether the prisoner suffered physically from the discipline to which he was subjected. The relator was not necessarily guilty because of the mere temporary deprivation of food. That, as the physician, Dr. Kelly, testified, in a majority of cases is a benefit, rather than an injury. The real question is whether the relator was responsible for such deprivation as was proved, and whether, if so responsible, that deprivation was actually harmful to the prisoner; whether, in other words, upon all the facts and circumstances, the treatment was cruel and inhuman. That the relator was justified in properly disciplining the prisoner we are all agreed. Even the superintendent of the workhouse, Mr. Bunphy, who was called in support of the charge, was constrained to admit— seemingly with great reluctance—that if a sane prisoner called the warden of his institution opprobrious epithets he might inflict some punishment. And in this he was clearly right. It would be destructive of all discipline and order to permit prisoners to abuse with impunity those into whose care and keeping they are intrusted. There can be no doubt that Herman misconducted himself in the hearing of other prisoners, calling relator a vile name, and using other abusive expressions. This is substantially conceded, the commissioner himself having heard the foul expression, though not the qualifying adjectives. The propriety of proper discipline to check such misconduct and prevent its extension is undoubted.

The question remains, did the discipline transgress reasonable bounds? First, did the extreme deprivation of food to which the prisoner and others testified result from the relator’s orders? We

“Q. Did you feel any bad effects from being shut up for three days? A. Yes, I did. Q. What were they? A. At first I had nothing but a dry retching

from my stomach all night. My head ached so I thought it would bust. I laid down on the cold concrete to try and cool off my head. I thought it would bust. Q. What was your condition when you came out? A. I was as weak as I could be. I was half perished to death, and the smell of that closet was enough to kill anybody, without shutting them up in darkness, and serving them that stuff.”

In addition to this, the prosecution was permitted to prove, under objection and exception, the prisoner’s declaration (which was pure hearsay) that if he had been kept in the dark cell much longer he would have died. Upon cross-examination it was sought to weaken the effect of Herman’s testimony in various ways: First» by showing that he had previously been convicted of crime; and, second, that the suffering which he detailed resulted* from pre-existing disease, and not from his prison discipline. Every effort in tliis direction, however, was frustrated by the rulings of the commissioner. He ruled out, under objection and excéption, the question whether the prisoner had been convicted of a criminal offense before. The relator’s counsel then interrogated the prisoner as to the headaches and illness which upon his direct examination he claimed had resulted from his confinement in. the dark cell. Counsel endeavored to show-that these headaches and this illness resulted from some prior disease. Every question upon this head was ruled out, although the counsel explained, his purpose most clearly. Such questions as these, for instance, were asked and objected to:

“Q. What is the nature of the disorder you consulted- the doctor about, apart from anything else you have told us? Q. Was it making you ill-making you feel ill,—this disorder that you had? What effect did the disease have upon you that you consulted the doctor about? Q. How did it make you feel ill?”

“I submit,” said the relator’s counsel, “that he must answer this question. Look at the way it places my client. He complains of illness in the cell, and he has got some disease. How can the symptoms that he exhibits be attributed to his confinement unless we know what effect the disease has on him. * * * I want to know if it was his disease that would make his headache.”

This was .surely clear enough. The commissioner could not possibly have thereafter misunderstood the purport of the inquiry. It was followed by this still plainer question: “Q. Will you tell me •what effect this disease you say you had, had on you?” Again the commissioner sustained the objection to the question, and the relator’s counsel excepted to the ruling. At a later stage of the cross-examination the witness was asked whether his disorder had ever affected his appetite before. This was objected to. The following question was then put: “Q. You refuse to tell whether the oilier disorder had affected your appetite or not?” This wras also objected to. The counsel then said to the commissioner, “You will not compel him to answer?” The commissioner replied, “No.” “Then,” said the counsel, “I will take an exception.” It is undoubtedly the rule that in hearings of this character the .same correctness and accuracy on rulings upon" questions of evidence are not required as upon ordinary trials at law. But where the conclusion arrived at has plainly resulted from such erroneous rulings,

Our conclusion upon the whole case is: First, that as matter of fact none of the charges of incompetency and conduct inconsistent with the relator’s position were sustained; and, second, that, even if the charge of cruel and inhuman treatment had been prima facie made out, it was substantial error, going to the root of the commissioner’s judgment, to rule out cross-examination tending to refute such charge, and to show that the prisoner’s sufferings as detailed by him, and by him alone; "proceeded from causes other than the discipline to which he had been subjected.

The determination of the commissioner should be" annulled, and the relator reinstated, with $50 costs and disbursements. All concur.