People ex rel. Gambling v. Board of Police , 6 Abb. Pr. 162 ( 1858 )

By the Court.^*

Davies, C. J. The return to the writ of certiorari in these cases and others, brings up the question whether the relators have been legally dismissed as policemen of the city of Hew York.

They were duly and legally appointed under the act of April 13,1853. (Laws of 1853, ch. 228.) By section 2 of article 3 of that act, it was declared that “ the members of the police department, appointed after this act shall have gone into effect, shall hold them offices during good behavior, and shall only be removed for cause, as hereinafter provided.” Section 4 of the same article prescribes the mode of removal.

Hotice to the accused was to be given to afford him an opportunity to be heard in his defence. The accused party might in all cases appear by counsel, and compel the attendance of witnesses in his behalf. The commissioners were to examine witnesses under oath, and the testimony in. each case to be re-, duced to writing, and the decision filed with the clerk of the Common Council.

The act of April 15, 1857 (Laws of 1857, ch. 569) established a metropolitan police district, and provided for the government thereof. By this act a board of commissioners were appointed, who were to have the government and management of the poEce within the district. The quota of patrol force for the county of Hew York was to be the number of patrolmen then existing by law in the city of Hew York. Section 7 of this act declares that the quaEfic'ations, enumerativo and distributive, of duties, mode of trial, and removal from office, of each officer of the police force, shall be particularly defined and prescribed by rules and regulations of the Board of Police; and that no person shall be removed therefrom except upon written charges preferred against him to the Board of Police, and after an opportunity shall have been afforded him of being heard in his defence.” Section 32 of this act declares that the poEce of the city of Hew York, after the first meeting of the Board of Po-Ece (which was on April 23,1857), should hold office and do duty under the provisions of that act, “ and as members of the police force of the metropolitan district hereby constituted.”

In pursuance of the authority thus conferred, the Board of PoEce adopted rules and regulations relating to the mode of trial and removal from office of the members of the police force. Rule sixth prescribes that charges preferred against any members of the police force must be in writing, and sworn tool' affirmed to, with the name and residence of the complainant; if stated to be on information or belief, then the source of such information, and the reason of such belief, shall also be stated. But this was not to apply, when charges were preferred by any commissioner, or the general or deputy superintendents or inspectors, who might charge simply in writing. All such charges must be filed with the chief clerk.

Rule seventh prescribes that when charges are filed, the chief clerk shall notify the person complained of to call and examine the same, and the person complained of, within two days thereafter, must either dictate answers thereto to the chief clerk, to be by him taken down, or he may prepare the same in writing, within the same time, and file the- same. The trial thereof shall , be in order at any subsequent meeting of the board, of which the person complained of shall be advised.

In the cases before us the charges were in no instance preferred by a commissioner, or by a general or deputy superintendent, or by an inspector, and the charges in no instance were sworn or affirmed to. There is no evidence that any notice was given to any of the relators to call and examine the charges preferred, or that they had any opportunity of such examination.

Notice of trial, on charges, was left at the station houses of the various wards, but no time or place of trial was specified therein ; and there is no evidence that knowledge of such time and place, or of such charges, ever came to the relators.

For the reasons given by Mr. Justice Davies, in the case of The People on the relation of McDermott against these defendants,^* we are of the opinion that notice of such charges, and of the time and place of trial, should have been given to the relators personally, so that they might have had an opportunity of being heard in their defence.

When a statute prescribes the mode of acquiring jurisdiction, the mode pointed out must be complied with, or the proceeding will be a nullity. (Bloom v. Burdick, 1 Hill, 130; Stanton Ellis, 2 Kern., 575.)

Notice of the charges preferred against the relators, and notice of the time and place of trial therein not having been given io them, in conformity to law, the defendants had no jurisdiction over them, and their order of removal, depriving them of the office of policemen, was unauthorized, and cannot be maintained.

The office of policeman, as created by the act of 1853, and continued by that of 1857, is not a political office, subject to change and removal at the will of the appointing power. The commissioners of police under the act of 1853, as well as the ■defendants under that of 1857, in proceeding to the trial and .removal of policemen, act in a quasi-judicial capacity. The ■.reasons or causes of removal are not subjects of review. If they have jurisdiction, the motives of their action, or the sufficiency of the causes for removal, are not to be questioned here.

That a certiorari to review these proceedings is the proper and appropriate remedy, admits, we think, of no serious question.

It lies to review the proceedings of canal appraisers, who appraised the damages of an individual without giving him an •opportunity to be heard, or to produce testimony. (Ford v. Canal Appraisers, 1 Wend., 288.) It also lies to review the proceedings of courts-martial. (Rathbun v. Sawyer, 15 Ib., 451.)

It was granted, and proceedings before a special officer set ■aside, on the ground that he had not acquired jurisdiction. (In the case of the People v. Reed, 5 Den., 554.) And this court, in the matter of Burnis (1 Barb., 193), set aside the proceedings had before a justice on the ground of want of jurisdiction.

We are therefore of the opinion that the proceedings had by the defendants for the removal and dismissal of the relators as policemen, are void for want of jurisdiction, and should be set aside.

* Present, Davies, C. J., Clerke and Sutherland, JJ.

* Reported 5 Ante, 422.