180 N.Y. 237 | NY | 1905
On the 13th day of June, 1901, the relator, then a patrolman on the police force of the city of New York, was charged with violating certain rules of the police department. The charges were heard by one of the deputy police commissioners, and thereafter the police commissioner, who had taken no part in the hearing, found the relator guilty of the misconduct charged against him and made an order dismissing him from the force. The relator appealed from that *239 order, and the learned Appellate Division annulled the determination of the police commissioner, on the ground that the deputy who had heard the charges had made no finding of guilt upon which the police commissioner's order could be predicated. The police commissioner now appeals to this court, and the single question to be decided is whether the deputy police commissioner in New York city, before whom charges against members of the police force may be examined, heard and investigated, is required to make a written finding of guilt in order to give the police commissioner authority to convict and punish. The learned Appellate Division has held that such a finding is essential to a valid conviction. We are unable to concur in that view. Not only do the pertinent provisions of law seem to exclude any such requirement, but the nature of the proceeding is such as to negative the idea that the police commissioner's authority to convict and punish a delinquent subordinate is, in any sense, dependent upon a previous written finding of guilt by the deputy before whom the charges may be heard.
When this proceeding was instituted, chapter 33 of the Laws of 1901 was in force. It abolished the old police board and vested its powers, duties and functions in a single police commissioner, who was given power to appoint, and at pleasure remove, two deputies to be known as first and second deputy commissioners. The first deputy was authorized to exercise all the powers and perform all the duties of the commissioner in the latter's absence or disability, except the power to make appointments and transfers, and, in the absence or disability of both these officials, the second deputy was given the same powers and duties. The commissioner was authorized to define the duties of the deputies and to delegate to them any of his powers except the power of making appointments and transfers. The statute, after briefly enumerating certain matters not germane to this discussion, further provided that no statute of the state, or ordinance of the city of New York, relating to the police department and not inconsistent with its provisions, should be construed as repealed by its enactment, *240 but should remain in force and effect, to be construed and enforced in harmony with its provisions.
From this brief synopsis of chapter 33 of the Laws of 1901 it will readily be seen that all of the old statutes and ordinances not inconsistent with its provisions, and relating to the discipline of the police department, were continued under the new dispensation which substituted a police commissioner and two deputies for the old police board. During the existence of the police board it had been common practice for one of the commissioners to hear and examine charges against members of the force, and then for the board as a whole to consider the charges, make the findings and pronounce decision. (People ex rel.Flanagan v. Board of Police Comrs.,
In People ex rel. Flanagan v. Board of Police Comrs. (supra) it was held that "A trial before the board is a mere investigation to maintain the discipline of the police force, which they are empowered to accomplish by the removal of *241
those they adjudge unfit for the position, or by some lighter penalty ranging from mere reprimand up to suspension or forfeiture of pay." And again, in People ex rel. Weston v.McClave (
The provisions of the consolidated charter of the city of New York which became a law April 1st, 1901, and went into effect January 1st, 1902, indicate no legislative intention to depart from the rules which, under the old dispensation, had governed proceedings of this character. Chapter 8 of that charter, under the head of "Police Department," contains a codification *242 of the various previous statutes and ordinances relating to the subject, with such amendments as seem to be required by the changed conditions. Section 270 provides for the appointment of a police commissioner who shall be the head of the department. It authorizes the commissioner to appoint two deputies to be known respectively as the first and second deputy commissioners. During the absence or disability of the commissioner the first deputy is invested with all his powers and duties, except the power to make appointments and transfers; and during the absence or disability of both of these officers the second deputy is invested with the same powers. The commissioner is authorized to define the duties of the deputy commissioners and to delegate to either of them any of his powers, except the power of making appointments and transfers. Section 300 authorizes the commissioner to make, adopt and enforce rules, orders and regulations for the government, discipline and administration of the police department and the members thereof; to adopt rules and regulations for the examination, hearing, investigation and determination of charges preferred against the members of the police force; and to provide for the examination, hearing and investigation of such charges by the commissioner or one of his deputies. Section 301 authorizes the commissioner and his deputies to issue subpœnas and subpœnasduces tecum. Section 302 authorizes the commissioner (not his deputies), 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, violation of rules or neglect or disobedience of orders, or absence without leave, or any conduct injurious to the public peace or welfare, or immoral conduct, or conduct unbecoming an officer, or any breach of discipline, to punish the offending party by reprimand, forfeiting and withholding pay for a specified time, or by dismissal from the force.
It is obvious that under these sections of the present charter the deputy commissioners are authorized to examine, hear and investigate charges against members of the force, but that the power to convict and punish upon such charges is vested solely *243 in the commissioner, except in his absence or disability, when it devolves upon his deputies in the order of their rank.
It is to be observed that none of these sections contain even an intimation that when charges against a member of the force are examined, heard and investigated by a deputy commissioner, such officer is required to make a formal finding or determination thereon before the commissioner is authorized to render his decision. It is, doubtless, entirely proper for a deputy who presides at such a hearing to make a finding as to the accused officer's guilt or innocence, and such finding will be deemed to have been approved and adopted by the commissioner, unless the decision which he makes is at variance therewith. But the point to be emphasized is that such a finding by the deputy is not essential to the commissioner's right to make the final decision. The hearing and disposition of charges against members of the force necessarily involve the exercise of discretion and judgment. But these are the quasi judicial functions of an administrative officer, rather than the strictly judicial functions of a legal tribunal.
We think the order of the Appellate Division should be reversed and the determination of the police commissioner confirmed, with costs in all courts.
CULLEN, Ch. J., GRAY, BARTLETT, HAIGHT and VANN, JJ., concur; O'BRIEN, J., not voting.
Order reversed, etc.