188 A.D. 351 | N.Y. App. Div. | 1919
Lead Opinion
The charter of the city of Plattsburgh provides that the common council “ shall choose one of the aldermen to be temporary president, who shall during such official year, be the presiding officer of the common council in the absence of the mayor, and while the mayor is absent from the city or
The relator was a member of the police force of Plattsburgh, and was charged in writing with having been derelict in his duty upon a particular occasion on the 9th day of April, 1918, in that he failed to make an arrest of one Frank Murphy, 'who was at the time engaged in the disturbance of the peace. The undisputed facts appear to be that Murphy was drunk and disorderly; that he had .had a fight with a young man, in which he appears to have suffered somewhat, and that he subsequently sought for the young man at the place of business of the father, entertaining himself, while waiting, by throwing pool balls through the windows, etc. The relator was called in and appears to have quieted the disturbance, and then to have permitted Murphy, who was bleeding badly and apparently in need of medical attention, to remain with a friend, who undertook to provide the medical care. Subsequently, and nearly a week afterward, a warrant was sworn out by the chief of police, and Murphy was arrested and on pleading guilty was fined fifteen dollars. In the meantime the chief of police. preferred charges against the relator, and this proceeding is brought to review the trial.
There can be no reasonable doubt, from the return, that the police committee of the common council of Plattsburgh, of which Harry M. Cooke, the acting mayor, was chairman, assumed to have jurisdiction of the charges against the relator. They met and continued to go through the forms of a trial until it was made to appear that the mayor was the only person authorized by the statute to entertain jurisdiction, and then, upon return to the writ, it appears that the theory was developed that as the mayor was informed by one of the parties that he would be called upon to become a witness in
But, assuming that the proceeding was in good faith, and that the two members of the police committee sat without authority in law for the purpose alleged, we are still of the opinion that there was no jurisdiction- in the tribunal to hear these charges for the reason that the record does not show that Charles A. Barnard was “ absent from the city or unable to perform his duties ” as mayor, and without this.fact appearing there could be no authority on the part of the acting mayor to undertake this trial. There is no presumption in favor of the authority and jurisdiction of inferior magistrates or tribunals exercising judicial functions (People ex rel. Hayes v. Waldo, 212 N. Y. 156, 172, and authority there cited), and the affidavit of Mr. Cooke, on the return to the writ, that “ I understood the said attorney, John E. Judge, for said Liberty, said to Mayor Charles A. Barnard of said city, that he should require and use the said mayor as a witness in behalf of said Liberty on the trial of said charge against -the said Liberty,” does not meet the requirement. Nor is it helped by the further declaration in the same affidavit that “ Whereupon said Mayor Barnard informed me that I would have to act upon and hear said charge as mayor of said city, as he was disqualified from acting as he was to be called as a witness for said Liberty.”
The language of the statute is that the mayor “ is absent from the city or unable to perform his duties,” and it is not pretended that the mayor was out of the city, or that he was “ unable to perform his duties,” and no such fact appears in the record. The fact that Mayor Barnard thought he was “ disqualified from acting,” which fact does not appear in the record of the proceedings before the tribunal, is not sufficient to bring into being the powers vested in the acting mayor; the mayor must be out of the city or “ unable to perform his
It will be observed, from the discussion in the case cited, that the objection goes to the disqualification of the witness, not to the denial of jurisdiction and authority to the judge.
There is no dispute that the police committee, which in fact assumed to act, was without jurisdiction. It is equally clear that the acting mayor was without jurisdiction or authority in the premises, and the order suspending the relator should be set aside, and the relator should be reinstated to his position, with fifty dollars costs and disbursements.
All concurred, John M. Kellogg, P. J., in result in memorandum in which Cochbane, J., concurred, except H. T. Kellogg, J., dissenting.
Concurrence Opinion
I think the mayor was unable to perform the duties of his office in trying the relator. He was a necessary witness and so far an actor in the matter that he could not act judicially. The investigation, therefore, should have been before the acting mayor. The proceeding was, in effect, heard by the police committee, and the members of the committee took part in the decision; after the trial and agreement upon a
Cochrane, J., concurred.
Determination annulled and relator reinstated, with fifty dollars costs and disbursements.