*1 People 506 The v. Board of Police.
Statement of case. Stephen ex rel. L. Respondents, Cook, eMetropolitan th of of Police Police District of New York, Appellants. State certiorari, may go beyond inquiry, On a common law the court whether jurisdiction person subject matter, the inferior tribunal of had proceedings judgment its whether were within evidence, may whole the case ascertain whether examine error been committed before such inferior tribunal. police Where of patrolman the board commissioners have removed from membership, reversed, until his officeor such determination has been such liberty patrolman, member is serve as as a member police force. by may Although illegal, such removal board alleged delin roll-call, duty report quent is not bound himself at per tender etc.; duty, and his failure to do formance so is not to be deemed an duty without leave. from absence law, upon principles Code, common nor Neither under the are costs certiorari, on a common and it awardable is error in an inferior tri bunal to award costs in such cases.
Appeal from Court in judgment General Term of the first district, affirming judgment Spe- on Term cial which by order of a fine imposing relator, was appellants, reversed and annulled. was a
The relator member force of police the metro district, and of the ninth patrolman police politan precinct, on and it the 19th of return, appeared January, 1863, charge preferred against him, from was, absence file and from duty, specification the ninth the station-house October precinct, 26, — the 8th January, 1863, of 439 1861, day period he tried this, days. Upon appellants, and, 1863, the 14th of board was’’ February, him find the matters whereby guilty pronounced, order and and therefore that he be fined adjudge, charged) that his of 439 num the amount days’ pay, pay same forfeited. is, hereby ber of be, days op The Boaed *2 of case. Statement return the the certiorari, the to In obedience precept of thereof the notice the set out charge, of the appellants and and answer, and the appear the requirement relator, the relator’s written trial, time and notice of the place him of the service complaint, due admission of personal the and notice of trial, and, also, specifications charges, certain of the rules taken on the and trial, testimony proofs and the with finding judg- appellants, and regulations him of the the convicting charge, ment of appellants, have closed on The case is certified to fine. imposing was rendered on the judgment the 10th February; 14th. made on the trial as to the mode were
Various questions the effect of a evidence, previous of taking convic-. and as to the fine for three absence, days’ right tion than make the forfeiture embrace more relators to the of return to the month immediately prior day pay but before trial was closed, After the judgment, duty. to absence from was the board respect regulation of the certiorari below, and, amended, argument was made respecting right and on appeal, of conviction any pronounce judgment the appellants amendment. after further decided do par- require
But the questions the evidence, statement, except, appeared by ticular with the relator was duty, 1861, charged roll-call on the leave from without evening absent in being That 1861. October, and until the 21st 18th, October was before appel- trial, investigation, ex joarte 1861, 26th of October, appellants on and, lants, dismissed from the that the relator be and adjudged, ordered he dismissal was and, that such entered, being force; police the same was served of dismissal by leaving order absent, to the on the 10th of and on his return residence, city at his he received from notified, he was verbally November, That, of dismissal. application the order wife and thé a certiorari was issued, Court, Supreme reviewed, and, 1863, there January, Woodruff, relator, appellants, dismissing vacated, the relator was restored on or the 8th of about 1863. January, conviction and sentence, charge specification, now in were for absence from and from the question, duty, station-house from the on which the relator dismissed day until the order or of dismissal appellants, reversed Court. Supreme Court reversed the proceedings, board to this court. appeal *3 for the
A. I. Vanderpoel, appellants.
Wm. for the Henry Arnoux, respondents. J. board the police metropolitan Woodruff, had of the district subject-matter jurisdiction charge, and of the relator itself, person who charge It on the trial them. is not that before objected, appeared due is not had as, the conviction, judgment into effect. carry authority pronounce I think arises, which the thereupon question principal the on a court, on common law appeal, may the whether the inferior tri certiorari, beyond inquiry, go and was the jurisdiction, proceeding bunal judgment true, Other ? questions, within jurisdiction in the view that I take of but, the discussed, raised case, to consider them. Some of be unnecessary them, it will form are mere which questions practice, my judgment, to review. not open are clearly there was trial, on no that, It is evidence insisted, the offense That relator charged. act- guilty That the ual facts were undisputed. alleged neglect duty, wise any appearing, of his dismissal from the period absence during force; error in law to hold that an it was offense, and pronounce judgment thereupon. convict the court as insisted on cer- cannot, If, appellants, evidence, nor the look into tiorari, rulings thereupon, op v. The Board Woodruff, Court, per Opinion of the committed of errors law with a view correction which finding then the facts trial, particular considered; appear- cannot was based guilty that jurisdiction, within ing, being It certiorari, is to on this be deemed, conclusive. has been that a common law certiorari up often said, brings forms no evidence, part record and not the only, circumstance, in the if then the record, and, so, inferior tribunal was case, required by particular does not writ to and did the evidence, return, return, enlarge other than the field of review, jurisdictional bring under examination. and limit a com- this is the extent of the review That times stated in the former certiorari, mon many and has often stated been present Supreme Court. v. The in The J., Mayor, etc., Thus, Bronson, aof common law New York Hill, says — the record or other “removes writ nothing entry,in *4 if the return contains of a the nature record—and, any This is cannot accordance more, regarded.” thing Ch. J., the Nichols v. Williams with opinion Savage, to a court Cow. certiorari—except justice’s (8 16): “A — otherwise the record it was brings up (where statute) the and not testimony.” only, Wend. Mayor Albany (23 In Ex Mr. parte 277), the office of a discusses certiorari
Justice great Cowen to the numerous cases in this and refers previous length, and concludes “The the amount (p. on 287), State subject, on a we will case, that common not, of these law are, which is another beyond power, go “We cannot look into jurisdiction;” (p. 288) word even where the return merits, on comes from testimony to act a tribunal bound law of evidence.” upon general in Baldvoin v. Calkins that (10 And Wend. yet, had reviewed set aside an assessment of court damages under a statute Onondaga, judges authorizing lands for the erection mainte purposes taking 510 v. oe Police. Court, per Woodruff,
nance aof on dam, to be so payment assessed, damages of reversal was, principles upon which the assessed erroneous. judges damages
The court disclaim to determine the amount of any power but assert the damages, to see that the power prin which the is to ciple law. proceed judges according It would not be to even to cite a review or profitable numerous Some of length cases Court. them are Starr v. Trustees Rochester Wend. (6 566); id. Dalton v. Anderson Prindle (15 583-4); id. (19 where the court held 394); could distinctly not on certiorari an reverse for error committed on a law trial in to and that remove summary proceedings tenant, did matter, not come under review. returned, though In the Court Errors Wend. the decision was (see 616) but not of tho affirmed, The opinion ground. chancellor was the effect that under the statute it was for the court to examine the decisions competent in those and that under the judge language proceedings, statute of the court was not restricted what the common cer court upon ordinary gave tiorari to correct the of an tribunal. inferior it is conceded Rhinelander Wend. Simpson 103) that in on the return to cer England penal convictions, tiorari must set out the evidence so that the court may judge whether been the conviction has evidence. upon proper Yet this is claimed not to apply summary proceedings for the an officer for misbehavior, removal of complaint Rex v. which an found in like, Lloyd example a clerk of the Stra. where the relator, peace 996); *5 Quarter Sessions to exhibited upon county, complaint on examina was, several misbehavior, containing charges and examination and the tion thereof court, hearing open office. On witnesses, removed from cer found guilty, return denied that the Court Bench tiorari of King’s set forth the evidence. should writ the refusal Johnson Wend. And in v. Moss (20 145, 148) to look reviewing beyond People The Board oe Court, Woodruee, full carried to the length rendered by justice, and the were the declaration proof even above stated, though also and see Wilson Green (id. insufficient; 189). Wend. v. Post's Executors (25 280) Niblo in law committed review and correct errors court, remove tenant,
the trial of summary proceedings that at com- counsel, most by discussed elaborately insisting under well as also that restriction, no as mon there was law would review correct all statute the court the chancellor on the stopped errors; argument to his Anderson v. Prindle and referred opinion counsel that of the other mem- as he believed, view, and, own case was decided another court. The point, bers as an it must nevertheless opinion regarded the statute warranted such review. Court of Errors that and the cases cited the counsel for argument tend that the limita to show error, plaintiff very strongly on a common tion of law centiorari, reviewable questions rested no sufficient so often before foundation. stated, In The v. The Rochester Barb. City 656) and the distinction between a common rule is stated, same various is writ statutes law certiorari given is latter cases the return deemed to noticed, bring of law in the the decisions on for review arising up as held in course of the Court Errors proceedings, Prindle. Anderson v. 25) v. Overseers Pr. In The Barton How. review the of the Court of Sessions in a case of common cer bastardy, by county Tioga of the sixth Court considered by Supreme
tiorari, reviews numerous of Justice and the opinion district, Mason the suit he the rule, wherever, follows cases, for error of such the matter at law, alleged an action to its be essential would a bill exceptions nature that law certiorari will a common writ error, review by it. reach in the like effect cases to the present
Other in are noted digest. Court *6 of Police. v. Woodruff,
These eases three classes cases suggest only: A 1. certiorari the common law to review the brought conviction of a with a crime or summary person charged in where a and not a is offense laws certiorari writ error, a which review is to be process by sought. 2. A common law certiorari to review other pro- brought of inferior tribunals, boards, officers, magistrates, ceedings or limited a under special jurisdiction. or authorized statute for the A certiorari
3. prescribed in certain review of cases. proceedings it has been later errors the last held that As to years under the statutes, may, provisions jurisdictional, made the for reversal. cases above (See cited.) far the decisions thus second, As State, referred seem to with much none to, hold, uniformity, can be considered. questions jurisdictional f to have been that in as it seems conceded, And to the first, certiorari would be a conviction up by brought England bill of as exceptions, examined substantially that the writ here no doubt is would case cited expressed raise the same questions. clear that decision of mere
In all the cases is ques cannot be fact evidence, tion of weight reviewed. the course decision have been
In this appears court, follows:' a review a Y. v. N. 247) Low Payne (4 where the rendered a civil action by justice peace, review terms, statute, provides proceedings, far as so error is evidence, even respect alleged. 255, R. S. etc.) (2 Goodwin, N. Y. common law 568) The People of referees review the appointed certiorari and it commissioners of highways, hear appeal could be re held, viewed. a certiorari was Hollister N. Y. 309)
In Morewood to review 49, R. S. the statute (2 47) pro- under § brought *7 513 v. The The Woodruff, Court, per J. Opinion of the and it of an was insolvent, held, for discharge ceedings correct erroneous examine and could the court J., law. opinion decision upon question Pratt, in this contain and the court in opinions The decision the cases on the full reference to subject. very error review alleged reversed the proceedings, in the the statute, opinion distinctly upon placed Edmonds concurs of Mr. Justice J. opinion Gardiner, and he enters at some effect of the statute, to the regard the three classes as to the first of into a discussion length cases showing, that, above purpose named, has estab been same conviction, principle long summary in the courts of other States in the courts, lished English does not disclose whether in our own. report concurred him the other with either of this, not judges the decision the case that he deemed does nor appear review every under consideration extend by at the common law. certiorari v. The N. Y. case of wood Hey City of Buffalo the collec filed to restrain where a bill
531), equity uses assessment, Johnson, an very tion of illegal alleged J., to be had the relief broad touching language " inferior That writ proceedings body brings up their deter review, passes directly upon thus But this can mination and reviewed.” hardly other than whether jurisdic said to opinion, express could be examined; contrary appears tional questions 76, in 30 N. Y. below cited. the same judge, the opinion indicated of the case proceeded, decision The actual other various of Denio, grounds. J., opinion where certiorari N. Y. v. Wheeler In The People of commissioners of high review was brought certificate had, in- discontinuing highway, ways, from the been writ, respond return procured after a relative of that one of them was in certiorari, showing ents J., expresses for the discontinuance, the applicant Wright, “ not show that The record did thus: himself guardedly, and the court to the commissioner, related applicant Tiffany—Yol. 65 X7-*» [Sept. v. The Board oe Police. Court, Woodruff,
below assumed to act a fact not appearing therein, which the commissioners were the court required by main return. The on certiorari relates to the inquiry can of the inferior tribunal, *8 in determined matters the record.” only appearing The decision of the was on the however, case, ground, in that if fact conceded, was, that, relationship no for case, reversing proceedings. it is dis The N. Y. (24
In v. Mullins, Jr., People 399), that a common law certiorari held in this court, tinctly before a review a conviction of relator magis brought a statute offense fine, brings up punishable by trate, magistrate affecting questions but also of the before him, or the proceedings regularity a con evidence to warrant there was sufficient whether viction. is to the of Selden, J., effect,
The opinion He to all other review also extends legal questions. in The J., People adverts language Bronson, a Wend. Dutchess (23 expresses 360), Judges of “ in in class of cases least, decided opinion, conviction be- used to remove the writ is summary under a the doctrine of penal statute, fore magistrate in several cases case is erroneous support ”—citing English of his views.
In N. Y. 383), proceedings Benjamin Benjamin removal of a tenant were brought up summary with the and it was views held, review, conformity Anderson v. Prvndle Afilio v. Post's chancellor referred that the certiorari allowed above Executors, to, those under review to review statute proceedings, brought of law the evidence. And, all arising upon yet, is restricted of a common more law certiorari operation in the opinion pronounced. recognized An observation Ch. found J., Susquehanna Denio, Broome wherein it held, Bank v. Supervisors County, that a bill to restrain the collection of an equity alleged not be sustained, could “We effect: tax, illegal sup- ' of Police. u. Court, Woodruff, that a
pose at the certiorari discretion Supreme might, he Court, awarded to determine the tax.” validity On the other Commiss v. Highway hand, ioners for the removal N. Y. where proceedings com encroachments upon highway, brought up by mon law and affirmed in the Supreme was reversed several opi grounds. “ nion has delivered he The relator by Johnson, J., says: mistaken the office of this which is evidently wholly writ, the record of the to enable merely bring up Court to determine whether inferior tribu nal has within its not to correct proceeded jurisdiction, mere errors in the Here the course of the object proceeding. seems to have been to into erroneous review bring alleged offered evidence rulings jury, receiving rejecting *9 on the before as were bill of hearing them, though excep tions. Such not do cannot be reviewed arise, on certiorari. It is the both defendants and the enough in the matter before them. jury jurisdiction The Baldwin v. N. Y. City (35 375), Buffalo of the decision of the case turned other although upon ques Morgan Mr. Justice tions, observes, that, according “ decisions in this a writ of certiorari will court, so bring up much of the evidence as is the necessary present question of.law, which relator to avoid the determina relies, tion of the inferior This statement ob general tribunal.” likens the office of a of to that of a writ certiorari viously of could not have writ of error bill Such exceptions. for the case in which he cites, been this court, meaning, to show such The v. Goodwin decision, N. Y. viz., is to the so much mentioned, above effect, that, only 568), returned as bears the evidence should be question of the inferior tribunal, subject-matter, and the case of Albany and of parties; person id. Co. v. Brownell (24 Railroad Northern not mention the referred does to, subject. other case N. Y. was an 511) Poughkeepsie v. The City of Swift upon a back warrant paid to recover money action brought v. The Boaed oe Police. Court, Woodruee, for the an collection of tax; illegal alleged though tax was it was the action erroneous, held, deemed yet was not delivered maintainable. J., opinion Bacon, is to the assess the effect that certiorari review brought would not ment, only bring up jurisdic tion but the on which the evidence assessors, body as the writ well acted, directed, and thus the entire case action, of their present principle if for correction. review, and, necessary, in The And, etc., others, People, Ferguson finally, heard and decided Term; March Assessors, January and in etc., Assessors People, Brooklyn, in March and decided in June heard present year, in the court, on certiorari appeal errors mode examined Supreme Court, alleged ordered a correction taxes, and of assessments principle to the entire assessment, making particulars, going therefrom. abatement It idle to to harmonize the various would be attempt decisions above referred to. and dicta later eases has taken more
It is true that the court of a of the office common liberal view review than was thereby, expressed by Court during many years. and learned late observations distinguished *10 in v. Middlesex Chief Justice The State (Coxe, 244) Kinsey, in of Bench of the Court King’s large “ is as unlimited and to redress whose power England, give are him and can be,”
universal as applied injustice wrong for the review certiorari, with force to of power great in law cannot be reached in any correction of errors which in R. v. Suydam And New R. Jersey other manner. while of New they Harr. Court Jersey, the Supreme fact to review mere upon disclaim the power to reverse exercised and evidence, asserted sustained by the damages award commissioners assessing on the railroad, lands for the purposes taking the lands, valuation in ground, making op Court, Woodruff, Opinion of or in rule law an erroneous erred by adopting commissioners There one of valuation. dissent by judge, principle in on the that valuation his dissent proceeded that a mere and he states volved of fact, distinctly it is in con settled that court is at to State liberty sider that have occurred in the illegalities proceedings any in decision is with Baldwin v. reviewed. This accordance in mentioned. the late Court Calkins, already in conviction of the own importance question, My char- number of summary view the great affect valuable are exercised which acter in which powers to and has led me collect both property, rights person I this cases on subject; more prominent compare has manifested resist the belief that been cannot disposition narrow to limit the office of most useful writ within too limits.
Let it be where an officer or board once established that or of the of officers persons have subject juricdiction exercise be its affected, proceed according is final and their determination mode forms, prescribed errors the reach of whatever review, beyond any clear it be and however commit, may may undisputed facts their decision or order is not warranted, judgment, — much of may and there is danger injustice wrong of redress. without happen possibility of fact hold that conclusions other hand, On the mere mattérs the order detail, evidence conflicting rule of not law to or mode of violating proceeding, are sub- and matters clearly party, prejudice' inferior discretion of the tribunal, mitted to its can be so exercise, case evidence where the presents all of the with conflict previous adju- would reviewed, and embarrass- inconvenience dications, produce great ment. cases which the
It be desirable multiply may to interfere matters of courts can be called upon appellate *11 no reason furnishes denying small but that importance, violated, are not when rules of that the to see v. The oe Court, Woodruff, is and no done, inconvenience will wrong result great public from its exercise.
I conclude, the case before therefore, us Su- had Court and that on this preme court power, appeal nave to examine the case power, whole of the upon evi- to see a dence, as matter there was whether, law, which could warrant conviction of the proof relator, absence from as neglect duty, by charge patrolman- ninth from 26th to the precinct, October, 1861, 8th of 1863. January, —
If -there was no evidence of if the case duty, was such at close of the trial it would have been erroneous to submit the were the like question jury, — in an before then the jury ordinary error question action, an is error conviction law, was rests illegal; no of facts evidence to sustain finding tending but as matter of law the relator finding; was entitled to be charge. acquitted thus I
2. think the Upon presented, defend- some ants acted under misapprehension. 26th of
On the had 1861, removed October, relator from the force. Within the terms of the police stat ute district, police an establishing membership “ office” held him behavior, which he during good removed could examined and upon charges duly substantiated. 15, amended (Act 1857, April April 10, Rules and 1860, for the 259, 15; Gov chap. Regulations § ernment of the Board of Police, 10.) § him from his
The board removed office or member- having he was not at and had no force, ship liberty, power, serve therein. The action of the board respect and more than a higher authority, operation, stringent leave of absence. It even more than refusal to mere made him serve,—it incapable serving. permit'him of the order It that the reversal subsequent argued, that it removal Court shows illegal is to be deemed void order, that, being illegal,-it no for not excuse every and, therefore, rendering purpose, *12 519 v. The Boabd ox Police. Conrt, Woodruff, Opinion, per J. of a that his do was omission to so
the service patrolman; of neglect duty. claim inference that would be, just ten- have each should roll-call,
relator appeared day himself to of dered perform patrolman ready duty in officers direct. might charge to this must force it be that
To argument, held, give of the board commissioners was which the order of nullity, had a to not which it but right disregard, the relator to his duty disregard. it is at variance not with all safe This is so; entirely pre- of a that in the conduct like in body cedent regulation of The board commissioners inad- may, through question. errors in commit of otherwise, performance vertence then* be in and sometimes orders may duties, possibly their be the law ille- their powers, eye legal excess that orders made in the course of their hold, but ;gal of the men under their government administration and void whenever are are liable nullity to-be control it case duty illegal, adjudged them at of the force set would tend defiance, individuals failure insubor- discipline consequent results am the defendants I be would, which first quite sure, dination and denounce. to deprecate leave is from the force without clearly neglect
Absence to see how absence with the leave of the It is easy duty. officer can be the leave neglect duty; superior proper no subordinate tc be longer duty renders given there is no course respect duty, present, no neglect. can be and lawful to make pay patrolmen proper
It may and to make actual service, every application depend of leave of absence waiver of practical and .acceptance And there would absence. period compensation it is not no it; neglect hardship to be seem with the leave Here given. in accordance charge act con- absence relator duty, against to do the order of in an omission highest. sisted The Board i\ or Police. Woodrurr, *13 superior and there was no practically prohibited, conflict of evidence or as to the facts. dispute To the convic- my mind, tion was not sensible only against every view the of the terms of the meaning charge, against the law.
For this I reason think it should be held erroneous and have reversed the been properly by Court. Supreme
3. It is further it was not lawful to objected award costs the and that in certiorari, this the judgment Court was erroneous. Supreme If the allowance of costs was then we can discretionary, not review the But the if, question. established according of law rules costs were governing, not allow- subject, then this able, be part judgment must appealed reversed.
It is on a clear, common law quite costs certiorari, not recoverable either were the other. It party was against that this be as in so, fitting should were general people in some tribunal or plaintiffs exer body i or was cising powers judicial quas judicial defendant; faith towas be of both presumed, favor good errors as the case and, may be, committed, errors in alleged, Where the at whose relator, instance the writ only. was to maintain some out, seeking private sued right, prop there be reason for or might privilege, erty, providing liable costs case of be he affirmance, should but as to would still be the there same defendant of im of reversal. in case munity to one’ssense is not
It according propriety expediency boards officers, judicial tribunals, should act that public with if costs being charged err in peril under rules of law. (See Law v. their 11 Rogers, Baldwin Wend. Wheaton, 321; Johns. 263.) are costs Code, these given Unless erroneous. in this respect as 318 of Code relied
Section court giving to allow costs in such at least It cases. discretion provides of a review of the decision court of inferior on the juris- y. Police, The Board oé 521" Clerke, the review of the in a special proceeding, diction be all deemed an costs, action purposes shall, Court law. defendants in this case the decision made in Was “ as that term is used the Code of special proceeding,” that board and is that term court, Procedure % is there used ? I must, think, answered
Both questions negative. like decision Such Caldwell's ex Abb. rel. 405); Shipman case *14 How. opinion Overseers (6 25.) general Mr. Justice district, in the eighth term Marion, Heath and others How. on etc. People, gen to me seems conclusive, quite though eral question, in the there was great plausibility argument case reviewed was in be then substance that decision sought a court. I think part judgment appealed from, which should be and that in other costs, reversed, awarded respects should be without affirmed, costs appeal. understand this case, If I was no offense, Clerke, of the conviction member relator, the time with leave. absence, to be absent con- the police was caused the unlawful complaint, stituted themselves. of the commissioners fact, they conduct the absence of the relator. consented to, compelled was erroneous order of the ; His conviction gen- affirmed. term should eral with the conclusions in accordance affirmed
Judgment Woodruff. Judge Tiffany—Yol. XII 66.