People ex rel. Muldoon v. Hayden — 58 N.Y. St. Rep. 535

Majority

p. 535

The People ex rel. John F. Muldoon, App’lt, v. Henry I. Hayden, Police Commissioner, Resp’t.

(Brooklyn City Court, General Term,

Filed February, 1894.)

Headnote

1. Cebtiobari—Reversal.

In passing upon the proceeding before the police commissioner, the court will not reverse for trifling errors, but will look at the whole case and see if the officer has had a fair trial, and ascertain that no injustice has been done him.

p. 536

2. Municipal cobpobations—Police.

Upon the trial of specific charges of misconduct at the polls, and failure, to make arrests, the commissioner has a right to inquire as to the conduct ‘ of the officer at the polling place during the entire day,

3. Same—Duty to abbest.

If such officer sees persons violating the election laws, or disorderly, or persistently blocking up the door of the polling place, he cannot turn his back and claim that he did not see the offense committed and decline to make the arrest, unless the complainant will go with him to the station house.

Certiorari to review the proceedings of the respondent in dismissing the relator from the police force of the city of Brooklyn.

‘Dailey, Bell & Orane, for relator; Francis A. McOloskey, for resp’t.

The relator was dismissed from the. police force of this city after a trial and conviction .on four charges for violation of the rules of the department, alleged to have taken place on election day in the twelfth election district of the first ward, and which charges were substantially as follows :

First. That he struck a man with his fist on the sidewalk in front of the polling place.

Second. That he said to him at the time, “If you come here again I’ll smash your face in.”

Third. That at the same time and place he failed to protect a citizen, Thomas C. Shearman, who was assaulted by an unknown party within his view.

Fourth. That he failed to arrest certain parties for violation of the election laws when requested to do so by Walter S. Brewster who was the chairman of the board of inspectors in said district during the time the polls were open.

According to the return, he was convicted on each and every charge.

In passing upon the proceedings before the police commissioner we must recollect that he is not a lawyer, and, though he acts in a certain sense judicially on the trial of police officers, we must not reverse for trifling errors, but should look at the whole case and-see if the officer has had a fair trial, and ascertain that no injustice has been done to him. Judge McAdam well said, in the case of People ex rel. Minchen v. McLean, 1 Misc. Rep. 463 , 467; 49 St. Rep. 611 : “The proceedings of the commissioners, while acting judicially, are to be reviewed with liberality, with a view of sustaining rather than reversing their judgments. This is necessary for the reason that the commissioners are to a large extent, responsible for the efficiency of the force under their control, and their methods of discipline should be interfered with only in extreme cases, where the charges have been unsupported by evidence, or the action of the board is clearly arbitrary, and not in accordance with legal requirements.” The decisions of the court of appeals fully sustain the rule above quoted. Judge Miller wrote as follows as to the powers of police commissioners in the case of People ex rel. Flanagan v. Police Comrs., 93 N. Y. 97 , 102: “ Their action must be considered having in view the special powers conferred

p. 537

and tlie purposes for which their organization was intended, and not confined by the application of strict legal rules which prevail in reference to trials and proceedings in courts of law.” In the case of People ex rel. McCarthy v. Board of Police Commissioners of New York City, 98 N. Y. 332 , 334, Judge Earl held as follows: “ This was not a common-law trial with the incidents and com-man-law rights pertaining to such a trial, nor, strictly speaking, was it a trial before a court. It was an investigation required by the statute in such cases to furnish information to the board upon which they can act in disciplining any member of the police force.” The rule is well established that the courts, in reviewing by certiorari the proceedings of police or fire commissioners, are only called upon to reverse (1) if the accused, on the whole case, did not have a fair trial; (2) on the facts, if the decision was against the weight of evidence. § 2140 of Code. On the latter question many authorities can be cited. People ex rel. Flanagan v. Board, etc., 93 N. Y. 97 , 102 ; People ex rel. McGowan v. McLean, 13 N. Y. Supp. 685 ; 37 St. Rep. 539 ; People ex rel. Costello v. Mc Clave, 15 N. Y. Supp. 221 ; 39 St. Rep. 479 ; People ex rel. Gardner v. McClave, 15 N. Y. Supp., 244 ; 39 St. Rep. 501 .

After a careful examination of the whole case, we are satisfied that the relator had a fair trial. The commissioner had the right, in our opinion, to inquire as to the conduct of the officer at the polling place during the entire, day. The commissioner was bound to ascertain whether Muldoon was endeavoring to aid parties in the violation of the election laws, or whether he was honestly endeavoring to preserve order and enforce the laws. Muldoon did not arrest the party who attempted to vote, and who had forgotten his name, the person who is called in the record “the man with holes in his hat,” and testified that he did not see him, though he was in the polling place at the time. If Muldoon had conducted himself properly the entire day except on that occasion, the commission could well hold that, in the excitement, the officer made a mistake which was not willful and intentional; but, if it appeared that he permitted disorder at the polling place nearly all day, and that he allowed violations of the election laws to go on without making arrests during the same time, such evidence would tend strongly to show that, on the charges on which he was tried he was guilty, not technically, but that he willfully aided in the violation of the election laws, and willfully permitted disorder at the polls. The hearing before the commission was an investigation of charges, and it was the duty of the commissioner to make such investigation full and complete.

The remaining point of the counsel for the relator is that the decision of the commissioner was against the weight of evidence. We think that there was ample evidence on each charge to uphold the decision of the commissioner. The testimony given by the relator was evasive, and his explanation of his conduct is difficult to understand. Take his testimony: “ There were four or five Eepublicans standing in the doorway and obstructing it.

p. 538

Nothing I would say would get them to move, and Mr. Brewster had to come down and to talk to them before they would go." Muldoon thus stated that he, as a police officer, could not keep the door clear, and that the chairman of the board of inspectors had to ask persons not to block up the door. The claim of Muldoon that he could not arrest unless some one went to the station house with him, to make a complaint, is frivolous. If he saw persons violating the election laws, or disorderly, or persistently blocking up the door of the polling place, it was his duty to arrest such parties, and make the complaint himself, and lie could not turn his back and claim that he did not see the offense committed, and decline to make the arrest unless the Complainant went to the station house with him.

We have examined the record, and every point raised by the counsel for the relator, and can find no reason to disturb the finding of the police commissioner.

Yak Wyck and Osborne, JJ., concur.

Proceedings affirmed, with $50 costs and disbursements.

Cases cited

People ex rel. Flanagan v. Board of Police Commissioners 93 N. Y. 97 N.Y. 1883-06-29 at 102 p. 536, p. 537
People ex rel. McCarthy v. Board of Commissioners of Police 98 N. Y. 332 N.Y. 1885-03-03 at 334 p. 537