People ex rel. Cline v. Robb — 37 N.Y. St. Rep. 8

Majority

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The People ex rel. John F. Cline, App'lt, v. J. Hampden Robb et al., Commissioners, Resp'ts.^[1]

(Court of Appeals,

Filed April 14, 1891.)

Headnote

Municipal corporations—Police—Removal without trial.

The relator, a park policeman, after examination by an expert in mental diseases, was reported as suffering from organic and progressive disease of the brain of an incurable character, liable to be associated at any time with mental disturbance and as likely to indulge in outbursts of insane temper, especially if he should drink strong liquors. Held, a proper case for removal, and in such a case it was not necessary to prefer formal written charges or to institute an inquiry in the nature of a trial thereon.

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Appeal from judgment of the supreme court, general term, first department, confirming judgment of police commissioners removing relator from his position as park policeman.

Louis J. Grant, for app'lt; D. J. Dean, for resp'ts.

The relator was a member of the park police in the city of York, is a special organized by statute and under the exclusive control of the board of park commissioners for the sole purpose of preserving order in the Central Park and the other public parks in the city. On the 23d of October, 1889, the board was advised by its surgeon that the relator, then on the sick list, was suffering from mental disease. The surgeon also suggested to the board that the relator should be examined by some expert in such diseases, in order that his fitness for the performance of police duty in the parks might be determined. The board caused such an examination to be made, by an eminent expert in mental diseases, who reported that, in his opinion, it would be unsafe to continue the relator on the park police force, as he was suffering from “ organic and progressive disease of the brain of an incurable character.” On being informed of this fact, the board, on November 9,1889, passed a resolution removing the relator from the force and dropping his name from the roll.

The resolution specifying the cause of removal was entered in the minutes of the proceedings of the board. The relator procured a writ of certiorari to review the action of the board in dropping his name from the roll of park policemen. The general term dismissed the writ, and from that order the relator appeals to this court. It is urged, in support of the appeal, that the action of the board in dismissing the relator was illegal, as there was no trial or statutory investigation or opportunity given to the relator to be heard. With respect to the tenure or duration of a public employment, such as the relator had at the time of his dismissal, the general rule is that where the power of appointment is conferred in general terms and without restriction, the power of removal, in the discretion and at the will of the appointing power,. is implied and always exists unless restrained and limited by some other provisions of law. People ex rel. Sims v. Fire Commissioners, 73 N. Y., 437 ; Bergen v. Powell, 94 id., 591; Ex parte Hennen, 13 Peters, 230 ; Laimbeer v. Mayor, etc., 4 Sandf., 109 ; Avery v. Inhabitants of Tyringham, 3 Mass., 177 ; Blake v. U. S.; 103 U. S., 227 ; People ex rel. Keech v. Thompson, 94 N. Y., 451 ; People ex rel. Moore v. Mayor, etc., 5 Barb., 43 .

This general rule was embodied in the constitution of this state in the following language: “ When the duration of any office is not provided by the constitution, it may be declared by law, and if not so declared, such office shall be held during the pleasure of the authority making the appointment.” Art. 10, § 8.

The numerous cases to be found in the books in which this court has reviewed the action of the police commissioners of the city of New York, in dismissing members of the general police force, have no application to this case. The police department and

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the general police force of the city of New York is organized, and exists under a series of statutes, passed from time to time, and now collected in chap. 8 of the consolidation act. Laws of 1882, chap. 410, §§ 250-314. These statutes confer power upon the board of police commissioners to enact rules and regulations for the government of the force. The powers and privileges of the members of the force are enumerated and specified. Provision is made for a pension fund for the benefit of the families of such members of the force as die from injuries in the service and for the benefit of the members themselves, when disabled in the ser-, vice or upon retirement, after a certain period of service, upon the conditions specified in the statute. The members of this force cannot be dismissed at the will of the appointing power because the power of removal in. such cases is expressly restrained by statute.

The legislature has enacted that “ members of the police force shall be removable only after written charges shall have been preferred against them, and after the charges have been publicly examined into, upon such reasonable notice to the person charged, and in such manner of examination as the rules and regulations of the board of police may prescribe.” Laws of 1882, chap. 410, § 272. It is by virtue of this provision of the statute, concerning the organization and government of the general police force, that a member thereof is entitled to a hearing, in the nature of a trial, upon written charges and a review of the action of the police board by the courts. People ex rel. Miller v. Police Commissioners, 67 N. Y., 475 . These provisions of law, however, do not apply to the relator, as the park police derive their appointment, powers and privileges from another statute, to which we must look for the relator’s right to question the action of the board of park commissioners in dropping his name from the roll.

The first legislation, authorizing the appointment of park policemen, is found in chapter 290 of the Laws of 1871, § 6. Power was there given to the commissioners of public parks to organize and appoint this force, to consist of such number of men as the board might from time to time deem necessary to preserve order in the public parks of the city. It was expressly provided that the force should be under the exclusive control and direction of the board, and might be, in whole or in part, discharged at pleasure. Bach member of the force was invested by his appointment with the same powers within the limits of the public parks as if he had been appointed to a similar rank in the force of the police department of the city, and might be allowed compensation by the board equal to that allowed to members of the general police force. Whenever, in the judgment of the commissioners, an additional force for the preservation of order in and about the parks became necessary, from special circumstances, the board were authorized to appoint such additional force temporarily.

The provisions of the act of 1871 in regard to the park police is now § 690 of the Consolidation Act. In this statute the power of removal by the board of park commissioners, which was the appointing body, was not only left without limitation or restriction,

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but it was expressly enacted that the board might discharge any member at pleasure. The power of the board under this statute to dismiss any member of the force at its will and pleasure cannot be questioned. Section 690 of the Consolidation Act which, as we have seen, contained all the provisions' of law concerning the appointment, removal, powers and duties of the park police, was amended by chap. 262 of the Laws of 1837, and it is under this statute that the right of the relator to retain his place on the force, until removed upon charges and after a hearing, is claimed. Upon a careful reading of this statute we think it is scarcely possible to reach the conclusion that any power previously existing in the board in regard to the removal of the members of the force was in any way curtailed or restricted. It is true that the provision found in the original act, to the effect that the board might discharge members of the force at pleasure, was omitted in the amendatory act of 1887. But this provision was never necessary to the exercise of the power of dismissal by the board. The absolute power of appointment carried with it the power to dismiss, in the absence of some provision limiting such power by express words of necessary implication. The words of the statute permitting dismissal from the service at pleasure added nothing to the powers of the board in that regard, and the omission of these words from the act of 1887 does not operate to take away any power which the board had before. The object of the amendment of 1887 was to confer additional powers upon the board and not to take away powers that existed before. The board was empowered to discipline and punish the members of the force for certain specified offenses by reprimand, forfeiture of pay with certain limitations, suspension without pay or dismissal. The commissioners were also empowered in their discretion to deduct or withhold pay, salary or compensation from any member of the force, for or on account of absence for any cause, without leave, lost time by reason of sickness or other disability ; provided, however, that the pay, salary or compensation so deducted should not, except in case of absence without leave, exceed one-half thereof.

The amendment was intended to enable the board to enforce discipline in the force through a system of rewards and punishments, a power that, as was supposed, did not exist before, and it may very well be that a member of the force could not be thus disciplined or punished without an opportunity to be heard. The legislature evidently was of the opinion that the efficiency of the force would be improved by conferring power upon the board to punish the members of the force for certain offenses by withholding pay or by reprimand or dismissal from the service entirely; but by granting this disciplinary power the legislature did not take away or limit the absolute power of appointment and removal at pleasure that the board previously possessed. The statute confers upon the board of park commissioners very extensive and important powers and duties for the purpose of securing the efficient management and care of the parks, f It would be a very narrow construction of the statute to hold thaV; the board does not possess

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the 2)ower to dismiss a policeman for mental or jibysical capacity to perform the duties of the place, without the delays and formalities of written charges and a public trial or investigation in order to settle the question whether such incapacity, in fact, exists or not. The incapacity may be perfectly apparent and the necessity for prompt and immediate action urgent, and yet, if the contention of the learned counsel for the relator is to prevail, the board is without power to dismiss a member of the force who has become incompetent, and even dangerous, by reason of mental afflictions. It is supposed that the citizens conrposing the board of 2)ark commissioners will exercise the power of dismissal from the service only in the public interest and when such a course is demanded by the circumstances and urgent necessities of the 2>artic-ular case, and always with fairness and justice to the members of the force. We think that the action of the board, with referenpe to the relator,"was within the powers conferred by the statute. In such a case it was not necessary to prefer formal written charges or to institute an inquiry in the nature of a trial thereon. The board had the power to act upon its own knowledge of the situation or upon such information as it acquired from the report of its own surgeon and the expert, to whom the question was referred.

The order of the general term should, therefore, be affirmed.

All concur, except Finch and Gray, JJ., absent.