People ex rel. Ullrich v. Bell — 24 N.Y. St. Rep. 114

Majority

p. 114

The People ex rel. Louis Ullrich, App’lt, v. James D. Bell, Police Commissioner, Resp’t.

(City Court of Brooklyn,

General Term,

Filed April 22, 1889.)

Headnote

Police—Buookltn (city of)—Power of commissiokebs of police: to ADOPT EEGTJLATIOJSrS—CUARTEE 1873—EFFECT OEBEVISEDOBAKTEE 1888.

The relator was dismissed from the police force on June 39, 1888, for violation of rule 114 of the regulations of the department, which forbids any member of the police force from being employed in other business. The rule in question was adopted in lb86 by virtue of the charter of 1873. By the revised charter of 1888, the old charter was repealed; but the new charter, which in terms repeals the old, re-enacts the portions of the old charter, without any change, which gives the commissioner power to adopt regulations. It appeared, however, that after the passage of the revised charter the commissioner did not formally re-adopt the regulations which had been adopted under the old charter; and it was contended by the relator that by his failure to do so, the old rules, including rule 114, became inoperative and void by the repeal of the charier under which they were adopted. Held, that the revised charter and statutes were a con inuation and modification of the eld, rather than an abrogation of the old and re-enactment of the new, and in order to construe them correctly, we must consider both the new and the old, with reference to the known purposes which the legislature had in view in making the revision. The object was not to repeal the laws which were re-enacted, but to combine them in a single act, and it was not necessary for the commissioner, after the passage of the act of revision, to make new regulations, but the old regulations continued in force.

p. 115

Sidney Williams, for relator app’lt; Frank E. OEeilly, for resp’t.

The relator, Louis Ullrich, a patrolman, on June 29, 1888, was dismissed from the police force of this city for a violation of rule 114 of the regulations of the department, which reads as follows:

“ CXIV. Each member of the police force shall devote his whole time and attention to the business of the department, and he is expressly prohibited from following any other calling, or being employed in any other business. Although certain hours are allotted to the .members of the ‘force for the performance' of duty on ordinary occasions, they must at all times.be prepared to act immediately, on notice that tlxeir services are required.”

We think that the testimony taken before the commissioner was sufficient to make out a prima facie case •against the relator, and in the absence of explanation, would justify a decision against him. It was proven that he had ordered cigars from the manufacturer to be delivered to a large number of persons in small quantities, and they were charged to him, and the evidence substantially shows that he was in the business of' canvassing for -the sale of cigars.

The mere statement of the above facts shows that rule 114 is a very proper and necessary one. A policeman'who is allowed to obtain orders for cigars, and receive a profit or commission for so doing, could add substantially to his income, for it is a well known fact that cigars are sold in grocery stores, w-hose proprietors sometimes claim the use of a good portion of the sidewalk; also in saloons and many other places where the policemen can, in many ways, do favors to the owners. An evil-minded policeman, if permitted to peddle, could coerce store-keepers to buy goods under fear of arrest for some technical violation of the law.

It is contended that, at the time of the dismissal of Ullrich, there were no existing rules in the department. The regulation in question was promulgated in October, 1886, by virtue of the charter of 1873. By chapter 583 of the Laws of 1888 (the revised charter), chapter 863 of the Laws of 1873 (the former charter) and chapter 377 of the Laws of 1880 were repealed, but were re-enactéd in the same words in the revision. The statute, which, in terms, repeals the statute giving the police commissioner power to make rules, also reenacts the same, without any change. Chapter 583 of the Laws of 1888 is entitled “An act to revise and combine in a single act all existing special and local laws affecting public interests in the city of Brooklyn.” The object of the revision is apparent from the title. The charter of 1873 was

p. 116

incomplete, and did not repeal any act, except where it was inconsistent with such act. Many of the provisions of the charter of 1854 and "its aimendments were still in force, and also' there were a large number of special •acts- affecting the city; and, under chapter 626 of fee Laws -of 1886, commissioners were appointed to raws thé spedM •and local laws affecting-the city of Brooklyn, and to eosaIrme all such laws an a single ach fa examining t-Iie preeent question, we have not found an authority in this, stefe directly in point, but In other- states the question has msuiy times been decided». 'In a .ease which arose in Massaeter sets, Chief Justice-Shaw paid: (Wright v. Oakley, 5 Metcalf, 400, 406.) <eln coiisfitong the Revised Statutes and. the connected acts of amendment and-repeal, it is necessary to observe great caution, to avoid giving an effect1 to- those -acts, which was never contemplated by the legislature. In terms, the whole body of the statute law was repealed, put these repeals went into operation, simultaneously with the Revised 'Statutes, which were substituted for them, and were intended to replace them, with such modifications as were intended to be mad© by that revision. There was no moment in which the repealing ddt stood in. force without being replaced by the corresponding provisions of the Revised Statutes.. In practical operation and effect, therefore, they are rather to he considered as a continuance and modification of old laws, than as an abrogation of those old and the re-enactment or new ones. In order to construe them correctly, we must take the whole of the Revised Statutes, together with the act of amendment and the repealing act,, and consider them in reference to the known purposes which the legislature had in view in making the revision.” See also Middleton v. R. R. Co., 26 N. J., Equity 269, 273 ; Scheftels v. Tabert, 46 Wisconsin, 439, 446; Lisbon v. Clarke, 18 N. H., 234 . See also authorities collated in Endlich on the Interpretation of Statutes, section 492.

The reasoning of the above cases is conclusive on the point under discussion. The object of the act of revision was not to repeal the laws which were re-enacted, but to combine them in a single act, and the repealing clause was inserted only to carry out such purpose. It follows that it was not necessary for the commissioner to make new regulations after the passage of the act of revision, and the proceedings taken before him must be affirmed, with fifty dollars costs and disbursements.

Van Wyck, J., concurs.