People ex rel. Fox v. Hayden — 44 N.Y. St. Rep. 506

Majority

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The People ex rel. Richard Fox, App’lt, v. Henry L. Hayden, Commissioner of Police, Resp't.^[1]

(Court of Appeals,

Filed April 19, 1892.)

Headnote

Municipal corporations—Boiler inspector.

Boiler inspectors in the city of Brooklyn, having the “ same powers and. privileges as members of the police force," are entitled to a hearing bifore dismissal and a fair opportunity to show that there is no legal ground for it.

Appeal from judgment of the supreme court, general term,, second department, confirming proceedings of commissioner of police of Brooklyn removing relator from office as an inspector of. boilers.

William J. Gaynor, for app’lt; F. A. McClosTcey, for resp’t.

The judgment of the general term, from which this appeal is brought, affirmed, upon a writ of certiorari, the determination of the commissioner of police and excise of the city of Brooklyn dismissing the relator from the place óf boiler inspector in that city. It appears from the relator’s affidavit and the defendant’s return to the writ that on or about April 10,1879, the relator was appointed such inspector. That he retained the place till February 29, 1890, when he was removed by the defendant Henry L, Hayden, commissioner of the department of police and excise, without cause and without a hearing. The defendant in his answer or return to the writ states that he assumed the duties of his office about the 1st of February, 1890, and that with a view of reducing the expenses of maintaining the department and in the exercise of the powers and duties imposed upon him, he determined that the services of the relator could be dispensed' with and that he be removed from the department. The question, therefore, is whether the relator could be discharged from the office or place which he held in virtue of his appointment without a hearing.

In order to get as clear a view as possible of the question, it is-necessary to refer to some statutory provisions concerning the office from which the relator was dismissed.

By chapter 883 of the Laws of 1867 the Metropolitan Police-Board was intrusted with the inspection of steam boilers in the city of Brooklyn and was authorized to appoint members of the “ Metropolitan Sanitary Company ” to make the inspection. Subsequently the duty of making such inspection was conferred upon the board of police of the city of Brooklyn, 'and it was-authorized to detail to such duty members of the police force competent therefor. Laws' of 1871, chap. 194, § 53. The amended charter of the city, passed in 1873, imposed upon the police board this same duty of inspection, and for the purpose of executing it power was given and the board was directed to appoint “ not to exceed four boiler inspectors, who shall be skilled machinists.” Laws 1873, chap. 863, tit. 11, § 52. The charter

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also contained a provision which had existed for many years before, to the effect that members of the police force could be removed only for cause after notice and a hearing, Laws 1873, chap. 863, tit 11, § 12; Laws 1870, chap. 136, § 13: Laws 1871, chap. 194, § 16, and the more recent act to revise and combine in a single act all existing and local laws affecting public interests in the city of Brooklyn has retained the provision. Laws 1888, chap. 583, tit 11, § 13. In the act last mentioned, § 52, provision is made for the inspection of boilers by persons who are practical engineers, and after providing for such inspection, under rules to be prescribed by the commissioner of police and excise, it is provided in | 54: “ Por the purpose of carrying out the provisions of the last two sections, the said commissioner shall appoint not to exceed six boiler inspectors, who shall be skilled machinists, and shall possess the same powers and privileges as members of the police force.”

Thus the statute authorized the appointment of six persons, possessing certain qualifications, to an office that had attached to it very important duties of a public nature, and in which the public were interested. The duration or term of the office was not fixed, nor were the powers and privileges enumerated specially, but for brevity the authors of the law referred to another provision of the statute prescribing the powers, duties and privileges of the members of the police force. They were to possesss the same powers and privileges as members of the police force. The precise inquiry is what is meant by the word privileges. The learned counsel for the defendant contends that the term was intended to express something less than a right resting in discretion, and which might be granted or withheld at the pleasure of some superior power.

The words “privileges” and “rights,” when used in statutes, are sometimes synonymous, and we think are clearly so in the statute in question. A statute providing, as this does, that certain persons shall hold office during good behavior, and shall not be removed therefrom except for cause, and after notice and a hearing, confers very substantial rights upon such persons, but such rights are very frequently and appropriately enough termed privileges also. The learned counsel ofor the defendant seems to concede in his argument that the provisions of § 42 of tit. li of the charter, providing for pensions to members of the police force on account of injury, long service or inability, ca'used by long service or age, for the benefit of themselves or their families, constitute a privilege which attaches to the office of boiler inspector also under the terms of the statute. If this is so it furnishes a very strong reason why the relator should be exempt from an arbitrary dismissal without cause and at the mere will of the appointing power. The right or privilege of receiving a pension from the government, based upon long service, carries with it the idea of permanency in the service for which the pension is ultimately granted.

Such a right or privilege, whatever it may be called, cannot well exist with the power to defeat it at any time before the expiration of the necessary period of service by a discharge of the

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incumbent without cause and without notice or an opportunity to be heard. One of the privileges which the members of the police force of the city of Brooklyn possess is the exemption from dismissal during good behavior. Another privilege guaranteed to them is a hearing before dismissal and a fair opportunity to show that there is no legal ground for it. This last mentioned privilege, at least, attaches to the office of boiler inspector under the statute. In order to reach this conclusion it is not necessary to show that a boiler inspector is a member of the police force. It is enongh that he has, under the law, the same privileges. It. is impossible for him to possess the same privileges, within the meaning of the statute, if he is liable to be dismissed at any time-without cause and without a hearing. It is suggested that the proper authority, in order to regulate or reduce expenses of the department, may reduce the force of inspectors. That may be so,, but if the want of funds or the necessity to reduce expenses is cause for dismissal, still the discharge must be made upon notice- and after a hearing. However that may he, it seems to us that, the language of the statute, the importance of the place and of the duties to be.performed, and its relation to the members of the-police force and the police department, all indicate that it was the intention of the legislature to put policemen and boiler inspectors, in the same position with respect to dismissal from the service.

It follows that the order appealed from and the determination of the commissioner should be reversed, with costs in all courts, to the relator.

All concur.