People v. Hannon — 35 N.Y. St. Rep. 762

Majority

p. 762

The People, Resp’ts, v. Thomas F. Hannon, App’lt.

(Supreme Court, General Term, Third Department,

Filed February 4, 1891.)

Headnote

Municipal corporations—Aldérman not a police official within Laws 1890, chap. 163.

The defendant was indicted under chap. 163, Laws of 1890, requiring that police officials shall not be interested in the sale, etc., of liquor and that those in office shall make and file an oath that they are not so interested. Lefendant was an alderman of the city of Hudson and by its charter a member of the common council, chap. 468 of 1872, and by said charter said common council has power to appoint and remove policemen. Held, that an alderman was not a “police official” within the meaning of the above statute and therefore need not file the oath thereby required.

Appeal from a judgment of the court of sessions of Columbia county, overruling a demurrer to the indictment against the defendant, and from a judgment of conviction of the defendant on such indictment.

Mark Duntz (.L. F. Longley, of counsel), for app’lt; A. V. S. Cochran, district attorney, for resp’ts.

The indictment in this case is substantially in form and substance like the indictment in the People v. Henry L. Gregg, decided at the same time, except that in the caselast cited Gregg was acting as mayor, and the defendant herein is charged as acting as alderman of one of the wards in the city of Hudson.

The indictment in both cases proceeds upon the theory that the accused comes within the designation in § 1 of chapter 163, Laws of 1890, of police commissioners, police inspector, captain, sergeant, roundsman, patrolman, or other police officer or subordinate of police department.

Section 19 and § 29 of the charter give the common council the power to appoint and remove policemen; and § 27 makes the aldermen of this city members of the common council; but none of these provisions in terms make the aldermen policemen of the city, or bring them within any of the police officials specified in § 1, chapter 163 of the Laws of 1890. And the defendant was not, therefore, required to take the oath prescribed in § 3 of that act.

"With that view of the case it is unnecessary for us to consider the grave constitutional question raised by the appellant on this appeal.

For most of the reasons stated in the opinion in People v. Gregg, supra, which is argued by the learned district attorney with this case, we think the decision of the court of sessions overruling the demurrer and convicting the defendant apply to this case.

The order overruling the demurrer and judgment of conviction and sentence on the indictment must be reversed, and the defendant must have judgment on the demurrer.

Learned, P. J., and Landon, J., concur.