People ex rel. Miller v. Elmendorf

Section 1 of chapter 821 of the Laws of 1896, being an act to amend chapter 312 of the Laws of 1884, provides:

“No person holding position by appointment or employment in the state of New York, or of the several cities, counties, towns or villages thereof, and receiving a salary or per diem pay from the state, or from any of the several cities, counties, towns and villages thereof, who is an honorably discharged soldier, sailor or marine, having served as such in the Union army during the war of the Rebellion, and who shall not have served in the Confederate army or navy, shall be removed from such position or employment except for incompetency or misconduct shown, after a hearing upon due notice, upon the charge made, and with the right to such employé or appointee to a review by writ of certiorari.”

It is unnecessary to review the provisions of the constitution and the various statutes that have been enacted in reference to the soldiers and sailors of the war of the Rebellion. The statutes prior to the last amendment of the constitution were for the purpose of giving them a preference in appointment. This intent of the statutes was embodied in section 9 of article 5 of the constitution. It was also supposed that the statutes existing prior to 1896 insured permanency in their tenure of office after appointment, and that they could only be removed for misconduct or incompetency; but the weakness of the statutes to protect them was revealed by the case of People v. Morton, 148 N. Y. 156 , 42 N. E. 538 , where it was held that, under the then existing statutes, no notice or opportunity to be heard was required to be given to the person whose removal was contemplated; and it was to remedy the weakness thus revealed in the statute that chapter 821 of the Laws of 1896 was enacted. A public position held by a veteran of the late war has been, by the constitution and the statutes, placed under the protection of the law. It is something that he now has a right to, so long as he is competent to discharge the duties of the place and conducts himself in a proper manner; and he can only be deprived of it after a trial upon a charge or charges preferred, and a conviction upon such charge or charges. People v. Humphrey, 156 N. Y. 231 , 50 N. E. 860 . While these trials or hearings upon such charges must necessarily be somewhat summary in their nature, and are not conducted with the same precision and exactitude as trials upon indictments for crime, and the same strict rules of evidence will not be applied as in trials before jurors, yet as the proceedings are quasi criminal in their nature, and valuable rights of the accused official are at stake, as well as his good name, the same safeguards

In the case before us, the charges are very general in their character. Neither time nor place, nor any proximate time or place, when or where the alleged misconduct took place, is stated. Under these charges, the accused is compelled to be prepared to account for his conduct during every day that he has been in office. This is illustrated by what took place upon the trial in this matter. The prosecution gave evidence that the relator was seen in a lunch wagon with a woman whose reputation was bad. One of the witnesses by whom this was attempted to be proved was asked the following question: “Q. Within the year have you seen Mr. Miller in a lunch wagon here on Tioga street, in the city of Ithaca?” This was objected to by the relator, the objection overruled, and the witness answered “Yes, sir." And, further answering, said: “I cannot say what month it was. I think it was in 1898. I couldn’t say whether winter or summer. There wasn’t any snow on the ground. I should say it was within a year.” A female witness was asked whether the relator had been in the habit of calling at her house after 6 o’clock in the afternoon. She testified: “He has not called within the last year.” She was asked as to whether he had called within the last two years, to which she answered, Wes, quite often, between 11 and 1 o’clock at night.” She also testified that he had brought liquor with him, and drank it at her house; that he had often drunk liquor at her house. She could be no more definite, except that he had been at her house in July, August, and September of the year 1897. Evidence was also given of the relator’s being in the house of a disreputable woman, doing tricks with cards there; and the witness was asked the following question: “Have you ever seen Officer Miller in Ida Lett’s house between the hours of 6 o’clock in the evening and 6 o’clock in the morning, while on duty?” This was objected to, because no specific charge of that kind had been made, and the witness’ attention had not been called to the time or place. The objection was overruled, and the witness answered: Wes, sir. I couldn’t state the date nor the month. It was within the last six months.” Again the witness answered, “All these occasions have been within the year.” Evidence was also given in relation to the relator’s being seen within a saloon known as the “Hole in the Wall.” The witness was asked, “Have you seen Officer Miller in this saloon within the last six months, between 6 o’clock in the evening and 6 o’clock in the morning, while he was on duty?”

The proceedings of the defendant should therefore be reversed, and the relator restored to his position as an officer of the police force of the city of Ithaca, with $50 costs and the disbursements of this appeal. All concur.