People ex rel. Miller v. Elmendorf

59 N.Y.S. 115 | N.Y. App. Div. | 1899

Herrick, J.:

Section 1 of chapter 821 of the Laws of 1896, being an act to amend'chapter 312 of the Laws of 1884, provides that “No person holding position by appointment or employment in the State of New York, or of the several cities, counties, towns or villages thereof, and receiving a salary or per diem pay from the State, or from any. of the several cities, counties, towns or village's thereof, who is an honorably discharged soldier, sailor or marine, having served as-such in the Union army or navy during the War of the Rebellion, and who shall not have served in the Confederate army or navy, shall be removed from such position or employment except for incompetency or misconduct shown, after a hearing upon due notice, upon the charge made, and with the "right to such employee or appointee to a review by writ of certiorari.”

It is unnecessary to review the provisions of the Constitution and the various statutes that have been enacted in reference to the soldiers and sailors of the War of the Rebellion.

The statutes prior to the last amendment of the Constitution were for the purpose of giving them a preference in appointment; this intent of the statutes was -embodied in section 9 of article 5 of the State Constitution. It was also supposed that the statutes existing prior to 1896 insured permanency in their tenure of office after-appointment, and that they could only be removed for misconduct •or incompetency; but the weakness of the statutes to protect them was revealed by the case of The People ex rel. Fonda v. Morton (148 N. Y. 156), where it was held that under the then existing statutes no notice or opportunity to be heard was required to be given to the person whose removal was contemplated; and it was to remedy the weakness thus revealed in the statute that chapter 821 of the Laws of 1896 was enacted.

A public position held by a veteran of the late war has been by the Constitution and'the statutes placed under the protection of the law. It is something that he now has a right to, so long as he is competent to discharge the duties of the place, and conducts himself in a proper manner, and he can only be deprived of it after a trial upon a charge or charges preferred and a conviction upon such charge or charges. (People ex rel. Shuster v. Humphrey, 156 N. Y. 231.)

'While these trials or hearings upon such charges must necessarily be somewhat summary in their nature, and are not conducted with the same precision and exactitude as trials upon indictments for crime, and the same strict rules of evidence will not be applied as in trials before jurors, yet as the proceedings are quasi criminal in their nature and valuable rights of the accused official are at stake, ns well as his good name, the same safeguards that are used to protect good name, fame, property or person in courts of justice should in substance be observed in these proceedings. The person accused should be sufficiently apprised of the charges against him to be enabled to prepare his defense. Hot only should the charge be definite as to its character, but where it consists in an act done or omitted to be done, the time and place of such act, or omission to act, should be stated with sufficient certainty to enable the party charged to be prepared to meet it; and also that the record of one trial may prevent his being harassed by a second trial or investigation upon the same charge, as an indictment should be sufficiently ■definite and specific in its charge to enable a person tried upon it to assert such indictment and trial in bar of a second trial for the same offense.

In the case "before us the charges are very general in their character ; neither time or place, nor any proximate -time or place, when or where the alleged misconduct took place is stated. Under these charges the accused is compelled to be prepared to - account for his conduct during.every day that he has been in office. .

This is illustrated by what took place upon the trial in this matter. The prosecution gave evidence that the relator was seen in a. lunch wagon with a woman whosls reputation was bad. One of the witnesses by whom this was attempted to be proved was asked the following question:

Q. “ Within a year have you iseen Mr. Miller in a lunch wagon, here on Tioga street in the city of Ithaca ? ” This was objected to by the relator, the objection overruled, and the witness answered, “ Yes, sir.” And further answering said, “ I cannot say what month it was. I think it was in 1898. I couldn’t say whether winter or summer. There wasn’t any snow on the ground. I should say it was within a year.”

A female witness was asked whether the relator had been in the habit of calling at her house- after six o’clock in the afternoon. She testified, “ he has not called within the last year.” She was asked as to whether he had called within the last two years, to which she -answered, “Yes, quite often, between eleven and one o’clock at night.” She also testified that he had brought liquor with him and. drank it at her house ; that he had often drunk liquor at her house.. She could be no more definite, except that he had been at her house in July, August and September of the year 1897.

Evidence was also given of the relator’s being in the house of- a. disreputable woman doing tricks ¡ with cards there, and -the witness was asked the following question : “Have you ever seen Officer Miller in-Ida Letts’ within the -last six months between the hours of six in the evening and-six in the morning and while he was on duty?”' This was ob jected to because no specific charge of that kind had been made, and the witness’ attention had not been called to the time or place; the objection was overruled, and the witness answered: “ Yes, sir: I c.ould not state the date nor the month. It was within the. last six months.” Again the witness answered, “ All these occasions have been within a year.”

Evidence was also given in relation to the relator’s being seen within a saloon known as the “ Hole in the Wall.” The witness-was asked, “ Have you seen Officer Miller in this saloon within the last six months between the hours of six in the evening and six in the morning while he was on duty ? ” This was objected to, and the objection overruled, and the witness answered: “Yes, sir. I couldn’t state the time or the month. It was within six months.” None of these witnesses were able to specify more particularly the occasions when they saw the relator in these places.

There are a number of other instances of a like character that appear in the case.

The extreme difficulty of defending against charges so indefinite is apparent, and the evidence received under these charges illustrates the propriety of charges being more specific and definite in their nature than those now before us.

I do not mean to say that in all instances a specific time or place must be alleged and proved as alleged, hut the time and place should be at least approximately stated, and the time or times upon or between which the offenses are alleged to have occurred should be stated within reasonable limits, so that the party accused may be apprised with reasonable .certainly of what he must he prepared to meet. A charge, although it specifies the particular kind of offense, is not a definite charge when it specifies neither time nor place; and, Under the statute first above cited, a person can only be removed upon a definite charge.

The proceedings of the defendant should, therefore, he reversed, and the relator restored to his position as an officer of the police force of the city of Ithaca, with fifty dollars costs and the disbursements of this appeal.

All concurred, except Parker, P. J., not sitting.

Proceedings reversed and relator restored to his position, with fifty dollars costs and disbursements.