63 N.Y.S. 362 | N.Y. App. Div. | 1900
The hearing is upon the writ, return and papers, upon which the writ was granted (§ 2138, Code Civ. Proc.), but the facts are settled
The return shows that the relator was charged with a violation of rule 289. “Every member of the force when entering upon duty must be neat in his clothes, and clean in his personal appearance and in his dress, in conformity with the rules and regulations,” and rule “ 311. No member of the police force shall leave the City of Buffalo, or be absent from duty (except when disabled by sickness) without permission from the superintendent or acting superintendent ; and such permission to be absent from duty, for a longer period than ten days, shall not be granted without the consent of the Board of Police.” That he was tried upon these charges and found guilty thereof, and upon such conviction was sentenced to be dismissed from the police force. It also appears from thereturn that a violation of rule 311, as to absence from duty without leave, constituted an offense against the rules, regulations and discipline of the force, for which the board of police was duly authorized by the charter of the city, and by the rules and regulations of the board, to remove and dismiss the relator from the force; but it does not appear from the return that a violation of rule 289, as to cleanliness, constituted any offense authorizing the board to remove or dismiss him from the force.
While the charter of the city of Buffalo (Laws of 1891, chap. 105, § 194) gave the board of police authority to make rules and regulations for the government and discipline of the force, and for the mode of removals from office, it does not appear from the return that the board ever made any rule or regulation authorizing them to dismiss an officer from office for violation of this rule.
It does not seem to be urged upon this appeal that the defendants had a legal right to dismiss the relator for a violation of this rule 289. We assume that such right did not exist. The order of. dismissal must, therefore, be sustained, if at all, upon the ground of a violation of rule 311, as to absence from duty without permission of the superintendent or the board itself.
The evidence and the return show that the relator was absent from November 19, 1897, until November 26, 1897, when his absence was reported to the board, but it was a matter in dispute
Upon these facts, the defendants determined that the relator had violated rule 311, by being absent from duty, without permission of the superintendent or the board; that he was guilty, and for such offense dismissed him from the force.
The transaction on November 19, 1897, did not amount to a permission, consent or arrangement that the relator might absent himself from duty except upon 'the theory of a resignation, or such absence as might be deemed by the board under rule 515 to be a resignation. He was asked to resign, to sign a formal resignation, which he did not do. He asked for an extended leave of absence, which was refused by the board. No leave of absence was granted at all. He gave his badge "and key to the superintendent and went away under circumstances tending to induce the belief that, while he would not sign a formal resignation, yet he did not intend to serve on the force longer. Upon no possible theory
We see no reason why we should make any effort to find aground for reversing the action of the defendants in this case. The relator had, in 1894, 1895, 1896 and 1897, been convicted of violation of the rules and regulations of the board, and had each time been reprimanded by the board and fined. On one occasion he had been at first dismissed from the force, and the board had rescinded their action and punished him by fine and reprimand. He was-not, by reason of his diseased condition and the filthy condition of his ¡verson and clothing, a proper person to be upon the force and to associate with the other officers thereon, or to serve the-public. He ought not, under the conditions disclosed by the return and the evidence, to be restored to the police force of the city of Buffalo, unless the law compels us to restore him. We do not regard the case as one calling for such a disposition.
The proceedings of the defendants should be affirmed and the-writ dismissed, with ten dollars costs and printing disbursements.
All concurred, except McLennan, J., dissenting.
Proceedings confirmed, and-writ of certiorari dismissed, with ten dollars costs and disbursements.