People ex rel. Mohr v. Board of Police Commissioners

Headnote

Police commissioners — power of; to try, and remove members of the force — the testimony must be taken before at least one of the commissioners who unite in the removal.

Appeal from an order of the Special Term, reversing the action ■of the commissioners, and reinstating the relator.

Charges were made against the respondent of conduct unbecoming .-an officer, and they were investigated on December 31,1879, before Charles F. MacLean, then one of the police commissioners of the city of New York. The board of police commissioners, however, did not act on the charges and the proceedings consequent upon them until April of the following year, when, at a meeting of the commissioners, the board, then consisting of Messrs. French, Wheeler, Yoorhis and Nichols, Mr. MacLean being no longer a ■commissioner, the relator was removed.

On his application made at the Special Term, this determination ■of the board was annulled, and he was reinstated. From the order ■declaring such resfilt this appeal is taken.

The court at General Term said: “We have held that the ¡examination may be conducted in these matters before one commis

sioner, and submitted by him to the others; but we have not declared in any case that the testimony may be taken before a commissioner and a removal had after he shall have Ceased to be a member of the board, and therefore by commissioners none of whom participated in the investigation or trial. We went far enough when it was declared that one commissioner might take the testimony. We think it would be a violation of the statute conferring the power of investigation or trial and removal, to hold that it could be done by commissioners, neither of whom actually participated in the investigation, and neither of whom knew anything about it or its incidents, except what could be derived from the minutes of the proceedings which took place before a person who, at the time of their action, had ceased to be one of their body. It is essential that at least one of the commissioners acting upon the charges shall be present during the investigation of them, so that a part of the tribunal shall have participated in the trial.”