89 N.Y.S. 1067 | N.Y. App. Div. | 1904
Lead Opinion
The relator, who had served on the police force for about fifteen years, and whose reputation as such we may assume to have been good, for nothing appears to the contrary, has been removed from his position as roundsman upon the charge that he had been guilty of “ conduct unbecoming an officer,” a very elastic term, depending upon individual conceptions of what belongs to the office of a policeman. In the case now before us the specifications are two in number. One of these is that while the relator was being tried upon a former charge of having failed to pay an indebtedness to one Hobbs, and while the latter was under oath testifying to the state of the account,, the relator said, “ You are a liar,” and the other is that the relator had failed to pay a man named Hobbs the sum of sixty-eight dollars and seven cents, and that the relator had stated that he had paid eight dollars on the account, and that said statement was false. In reference to the second specification it may be said that the evidence does not fairly preponderate that the statement of the relator was false. He says unequivocally that he did pay the eight dollars; he tells how and when he paid it, and Hobbs, who appears, to have been persistently following the relator and endangering his position in the department, says that the relator did not pay him the amount. An officer who came in during the conversation testifies that he heard Hobbs say that he would give relator a receipt in the morning, but this was in a measure consistent with either version of the transaction, for Hobbs testified that relator promised to give him some money in the morning, and the relator says that he gave Hobbs the eight dollars at the time of the conversation and promised to give him more in the morning, so that the testimony in reference to the receipt might apply to either of these situations. It is evident, therefore, that the question presented was purely one between two men, both of them having an interest in the matter
We are of opinion that the evidence does not warrant a finding that the relator made a false statement in reference to the payment of the eight dollars. There is as near an exact balance of evidence as it is practically possible to attain, and when we consider the fact that the investigation was conducted by a second deputy, on charges brought by the first deputy, the chances of bias are, in the nature of things, so great that it is mot unreasonable to insist that charges which form the basis of a forfeiture of the relator’s rights shall be established by a fair preponderance of evidence.
There is no doubt, under the evidence, that the relator did, on the occasion Of his examination before the first deputy commissioner, say to Hobbs, “Tou are a liar.”- This language is, we may assume, unbecoming an officer; he Ought not to have disturbed the judicial
But it is not necessary to stand upon this proposition. When the police commissioner or either'of his deputies undertakes a trial of a police officer upon charges, he constitutes a court of inferior jurisdiction. There is no presumption of jurisdiction in favor of the acts of inferior courts; an inferior court must, when questioned, show that it acted within its jurisdiction (Yates v. Lansing, 9 Johns. 396, 437; cited and recognized in Smith v. Central Trust Co., 154 N. Y. 333, 340,, and see further authorities there cited), and this requires that the record of such a court should show all facts essential to the jurisdiction. (Taber v. City of New Bedford, 135 Mass. 162, 164.) When the record shows that the trial is conducted by the police commissioner, there is no" question of his powers in the matter, but when the trial is conducted by a ¡deputy commissioner, as in the case now before us, the record should show by what authority the deputy is acting. Section 270 of the revised charter ■of the city of New York (Laws of 1901, chap. 466) provides for the appointment of a police commissioner, who is given the power to appoint, “ from the citizens of the United States and residents of the, said city, and at pleasure remove, two deputies, to be known as first deputy commissioner and second deputy commissioner. The first deputy commissioner shall, during the absence or disability of the commissioner, possess all the powers and perform all the duties ■of the commissioner except the power of making appointments and transfers. In the absence or disability of both the commissioner and the first deputy commissioner, the second deputy commissioner shall possess all the powers and perform all the duties of the commissioner, except the power of making appointments and transfers.
This result is not contrary to the reasoning or conclusion of this-court in People ex rel. Reardon v. Partridge (86 App. Div. 310). In that case the record recites (N. Y. St. L. Lib., N. Y. Sup. Ct. Cas. & Br. Counsel, vol. 5044, case 3, fol. 81) that “ the Police-Commissioner having, on the 26t-h day of May, 1902, ordered that: First. Deputy Commissioner N. B. Thurston be and is hereby directed to try charges preferred against Captain Reardon,” and “ this matter coming on to be heard on this date, the defendant appears-in person,” etc. “ Present: First Deputy Commissioner N. B. Thurston.” Here at least was a recital of the jurisdictional facts-necessary to give the first deputy jurisdiction, and the question raised in that case was not whether the first deputy had jurisdiction, but whether, he having had jurisdiction of the case in taking the evidence, it was within the power of the police commissioner to step in and complete the record by prescribing the punishment. _ We held in that case, and properly we believe, that the-policeman having been convicted before the first deputy commissioner, was brought within the language of section 302 of the= revised charter, which provides that the “ police commissioner shall have power, in his discretion, on conviction by him or by any court- or officer of competent jurisdiction, of a member of the force of any criminal offense, or neglect of duty,” etc., to administer certain defined punishments. While there is no reason to doubt that this discretion, might be delegated to. the deputy who was designated to try the-charges, under the provisions of section 270 of the revised charter, no reason suggests itself why the commissioner, authorized to-try the charges and to administer the proper punishment might not delegate a portion of this power to his deputy, reserving the discretionary power of punishment to himself. This is apparently what was done in the Reardon case, where the deputy was directed to-try the charges. It is true, of course, that a trial generally contemplates a determination of the issues tried. This court suggested ia the subsequent case of People ex rel. Callan v. Partridge (87 App.
The proceedings of the respondent in dismissing the relator from the police service should be reversed, and the relator reinstated in his position, with costs.
All concurred (Hirsohberg, P. J., in result, in separate memonandum, with whom Bartlett, Jenks and Hooker, JJ., concurred).
Concurrence Opinion
(concurring):
: I concur in the result. The return alleges that the deputy commissioner was duly authorized to try the charges. He did try the -charges, but it affirmatively appears that he made no adjudication of .guilt. His recommendation that the relator be dismissed from the ■service might be regarded as equivalent to such an adjudication in .accordance with the dictum in People ex rel. Callan v. Partridge (87 App. Div. 573, 576), but for the fact that the order of, dismissal ¡shows that the case was referred to the commissioner for decision, and that the conviction was made by him. The case presented is, therefore, that of a trial before one officer and a conviction by another. (See People ex rel. De Vries v. Hamilton, 84 App. Div. 369.)
Bartlett, Jehks and Hooker, JJ., concurred.
Determination annulled,. with costs, and relator restored to his position.