People ex rel. Allen v. Welles , 35 N.Y.S. 672 ( 1895 )

Osborne, J.

This is a proceeding by certiorari to review the action of the respondent, as commissioner of police and excise, in dismissing the relator from the police force.

By the charter of the city of Brooklyn (Chap. 583, Laws of 1888. tit. 11, § 9) the commissioner of police and excise was authorized “ to make such rules, regulations and orders for the government of the police force as he may deem proper,” and he was also authorized (§ 15), on conviction for violation of rules, etc., to punish by dismissal fr.om the force.

It appears from the return to the writ that, on or about October 23, 1893, Hon. Henry I. Hayden, the then commissioner, caused to be adopted, issued and published certain rules and regulations for the government of the police force, and these rules have never been repealed.

One of such rules (Bule 12, § 5) required each patrolman to remain on his j>ost “ until the time assigned for the expiration of his tour of duty,” except in certain specified cases not relating to the matters in issue here.

Another of said rules (Buie 25, § 5) forbade any member of the forcé becoming intoxicated, and further provided, in addition to being suspended and reported, that, in case “ he became violent, disorderly, or unable to take care of himself, he should be detained as a prisoner and taken before a magistrate at the next sitting of the court.”

On December 18, 1893, the relator was appointed a patrolman of the police force, and át about that time a copy of. the said rules and regulations was furnished him.

On or about February 1, 1894, the respondent was duly appointed commissioner of police and excise, in place of HE Hayden, whose term of office had expired.

On January 24,1895, charges were preferred by the captain of his precinct, against the relator, fór a violation of both of the above-mentioned rules, and he was also taken before Police Justice Haggerty on a charge of intoxication.

The relator appeared in person and by counsel before the commissioner in answer to said charges; a trial was had, witnesses examined on both sides, and, after deliberation, the commissioner adjudged the relator to be guilty of both of the. charges preferred against him, and dismissed him from the police force. The relator now seeks, by writ of certiorari, to review this determination of the commissioner and to have it reversed. . ■ i

'The learned counsel for the relator urges that, as the. present police commissioner had never adopted as his own and promulgated the rules and regulations issued by his predecessor, there, were no rules of the department in existence under which the relator 'could be disciplined by the present commissioner. This contention cannot be sustained;. The police department is a continuous body, and, while the executive head thereof may be 'changed from time to time, such change never contemplated the readoption of all previous rules and regulations in, order to make them binding on the ■ force; those rules and regulations stood, not as the act or declaration Of am individual, but of the official.,head of the department, and they continued to be binding on the' police force till altered or repealed by the proper authority.

The fact that a charge of. intoxication made-by the police . captain against the relator before the police magistrate was pending and undetermined cannot constitute a bar to the com-. missioner’s proceeding with the trial of charges against the relator, nor cah the final decision of the police magistrate acquitting, the relator have any effect in this proceeding.

. The commissioner had a right to try the relator for a'violation' of the rules of the police department, and to punish him, in his discretion, if the charge was sustained, while the police'' magistrate’s duty and power related solely to the trial of the relator for offenses against the people‘of the state of Hew York. People ex rel. Fitzpatrick v. French, 32 Hun, 112. Both officials acted independently of each other within their respective spheres of duty, and no action of one was binding upon the other.

We have carefully considered the evidence on the trial of the relator, and are of the opinion that the determinatioti of the respondent was well sustained by the evidence. ■ There is . nothing to show that any rule- of law was violated to the prejudice of the relator;, there was competent proof of all the facts necessary to be proved in order to authorize the making of the determination, and there was no such preponderance of proof against the existence' of any of those facts that the ver- ' diet of a juiy affirming the existence thereof, rendered' in an action in the Supreme Court triable by a jury, would be set aside by the court as against the weight of evidence- Code Civ. Proc. § 2140.

The proceedings should be confirmed, with fifty dollars costs and disbursements to the respondent.

Clement, Ch. J., andjVAN Wtok, 'J., concur.

Proceedings confirmed, with fifty dollars costs and disbursements. ■