65 N.Y.S. 801 | N.Y. App. Div. | 1900
On the 22d day of July, 1896, the relator was ap-
pointed by the police commissioners of the city of Buffalo to the office of clerk of the bureau of identification and information, in the police department of said city, and entered upon his duties on the 30th of that month, and retained his position until his dismissal by the defendants June 17, 1899. This bureau was created at the time of the appointment of the relator, and he was its first clerk. He was under the special direction of the assistant superintendent of the police department, and among his duties was the custody of the likenesses which were kept for the especial use of the detective branch of the police force, and he also had charge of the books pertaining to the detective bureau of that department. The relator at the time of his appointment was not a photographer, as the members of the appointing board well knew. Some time after his selection the taking of photographs of criminals was committed to him, and, in a rough, cursory way, he learned the art of photography sufficiently so that during two years of his incumbency he performed this function without any complaint from his superiors, although the character of his work must have been under the frequent review of the assistant superintendent, to whom he was primarily accountable. On the 8th of June, 1898, the plaintiff was summoned before the mayor and Commissioner Rupp, of the police board, and requested to resign.
“On the 8th o£ June, 1898, at 10:30 o’clock in the forenoon, Mayor Diehl sent here for me to come to the office in the police commissioners’ room. On my arriving there I found the mayor and Commissioner Rupp who greeted me with, ‘Good morning.’ Thereupon the mayor told me that he had called me into his office for. the purpose of asking me for my resignation, on the ground that his friends who had helped him during the campaign should have my position, together with the positions that are now occupied by the Republicans-in the police department. Commissioner Rupp then spoke up and said that it was not that they had anything against me, for I had performed my duties faithfully and honestly, but that they looked at it in the light that my position was kind of a halfway political place, and there was.no reason why the mayor should not make'room for his friends.”
The relator did not resign, and the matter seems to have been held in abeyance. Written specifications and charges against the relator were served on him the 9th day of June, 1899, and the notice apprised him that the trial thereof would be had by the board on the 14th day of that month. The specifications accused him of neglect of duty in four distinct particulars,—of disobedience of orders, incompetency, and absence without permission. The resolution of dismissal sustains the charge of neglect of duty as set forth in specification 4 of charge 1, incompetency, and absence without permission. From the undisputed testimony, therefore, we have the board first seeking the resignation of the relator, to give place to a partisan of like political complexion with the major part of the body; then, upon his refusal so to do, preferring charges against him for incompetency and neglect of duty, which are to be tried before the board itself. With a record of this kind, the conduct of the board, even though vested with discretion to decide upon evidence presented to it, must be scrutinized carefully to ascertain if, in the dual capacity of accuser and judge, it has balanced the scales in the latter function,
1. In the plan in vogue, when a prisoner was brought in, his photograph was taken according to the Bertillon system, and his body measurements were then made. The measurements were made by the relator, and noted down on the back of a card or a blotter, and the photograph of the prisoner was expected to be placed on the card. This card, therefore, furnished both the likeness and description of the prisoner, and was placed in the rogues’ gallery, and copies were sent to various cities where similar records were kept. The data were also copied in books which formed a part of the Bertillon system. One charge is that occasionally some of these data were' placed upon the blotters or cards by one of the police sergeants, instead of by the relator personally. There is no suggestion the entries were improperly made, and the two witnesses who testified to this asserted deflection from duty agree that these entries were made by them, respectively, either because several criminals were in attendance to be measured, or for some other reason the relator was engaged for the moment. The actual measuring was done by the relator, and he called out the figures, which were jotted down by the sergeant, and afterwards they were transcribed in the book designed for their reception. When the data were noted on a card or blotter
2. The second reason for his dismissal is that he was not a competent photographer. It is to be observed that the duties of the relator are defined in the rules pertaining to the bureau of identification and information; that the taking of photographs of criminals is not imposed upon him by these rules. He was a clerk charged with keeping a record of “the daily doings of the detective sergeants and specials detailed to the detective bureau.” He was to keep track of their hours of service, to record the names of the persons arrested, and the bench warrants -received, and to have charge of the books • in which are transcribed “the data of the persons subjected to the Bertillon system of identification”; also, of the rogues’ gallery. He was, therefore, the custodian of the likenesses and of the books pertaining to the detective branch of the police department. It was only after he had been in the department for nearly a year that the taking of photographs was included in his duties. He accepted this service, and therefore should be expected to perform it with a fair degree of precision. It must be remembered, however, that he was entering upon a new field, without preliminary training; that he was-engaged, not as a photographer, but as a clerk. And the pith of the performance of this added duty is that he discharged it to the apparent satisfaction of those who supervised his work. It was not expected that his photographic work would show artistic finish. The object was to obtain an accurate likeness,—a clear tracing of the lineaments of the prisoner’s face,—and the testimony is that a more precise likeness is obtained without the toning down of the jagged peculiarities which are marks of identification upon the face of every
3. The third charge was that on the 30th day of May, 1899, the relator absented Mmself from duty without leave. This was Memorial Day, and a public holiday. By order of the superintendent of police of July 25, 1898, the hours' of five officials of the police department, including the clerk of the Bertillon system, were fixed; but legal holidays and 'Sundays were excepted, thus permitting these officials to be absent on those days. It is contended by the defend
“Commencing May 1st, 1899, and until further orders from the hoard of police, the office hours of all clerks connected with this department shall be from 8 o’clock a. m. until 4 o’clock p. m., with one hour for dinner; and the Saturday half holiday is hereby abolished. All clerks will attend to their duties during the hours above stated, unless otherwise excused by the commissioners or the superintendent of police. All previous orders conflicting with the above are hereby repealed.”
It will be noticed that this does not in specific terms require the attendance of the officials on holidays, and that interpretation should not be given to it unless it is imperatively required, as the policy of the law is to allow officials and employés to be relieved from service on public holidays. There was no specific notice to the relator that this resolution applied to holidays, and no claim is made that he absented himself willfully of with any intention of shirking his duty. His practice had been uniform to be off duty on holidays, and he supposed that was still the rule of the office. This single absence on a public holiday does not constitute a delinquency of sufficient gravity to justify his dismissal from office.
In order that the public service may be maintained efficiently, great latitude is given the board to whom is committed the authority to dismiss an incumbent after a trial upon charges presented. "When, however, the obvious purpose is to remove the official because of his political predilections, and to give place to another more congenial politically to the members of the board, a due regard for the efficiency of the service requires that its decision to remove be subject to careful review and scrutiny. The official should not be smirched by sustaining a trumped-up or trivial accusation against him. The adoption of the party shibboleth, “To the victors belong the spoils,” would insure better service and be more honorable than to uphold an appointing body in its insincere attempt to make political removals, sheltered under the guise of baseless charges. The fact that the dismissal must be for cause, and upon specific charges, and after the alleged delinquent has had an opportunity to defend or explain the accusations, indicates that he is not to be removed unless the charges are fairly established. As was said in People v. Commissioners, 72 N. Y. 445 (at page 449):
“The removal must be for cause, and the process for removal is prescribed by statute, and must be pursued. The party against whom the proceeding is taken must be informed of the cause of the supposed removal, and be allowed an opportunity of explanation. This necessarily implies that the cause is to be some dereliction or general neglect of duty, or incapacity to perform the duties, or some delinquency affecting his general character and his fitness for the office. The cause assigned should be personal to himself, and implying an unfitness for the place; and such cause being assigned, if unexplained, the removal may be made. An explanation may consist of excusing any delinquency or apparent neglect or incapacity; that is, explaining the unfavorable appearances or disproving the charges. That some other man is a better man than the accused, or more congenial to the appointing or removing power, is not a cause which the incumbent can explain, in the sense in which that term is used, and is no cause of removal, within the statute. That something substantial is intended'by the statute is more evident from the fact that the ‘true grounds’ of the removal are to be entered upon the records, and ‘a statement showing the reason therefor’ filed in the department.”
The resolution and decision of the board of police commissioners of the city of Buffalo is reversed, with $50 costs and disbursements of this appeal to the relator. So ordered. All concur.