People ex rel. Dunn v. Board of Police of the Metropolitan Police District

Leonard, J.

This ease is in all respects similar to that of Wm. Gorman, except that the jury have found, in this case, the additional fact that the relator had not a valid appointment or lawful warrant as member of the police department under the act of 1853, and had not been duly commissioned or appointed as such member, under said act. The pleadings admit, however, that the relator was acting as a member of the police force at the time the new act went into operation, under the act in relation to the police department, passed in 1853.

The jury have found merely a conclusion of law. What the actual defect is in the appointment or warrant we cannot know. It is probable that the judge directed the jury at the circuit to find that the appointment was valid or invalid, according as they found certain facts to exist or not to exist. Whether the fact was that the relator’s warrant had not been signed, or that a part only of the board of commissioners acted upon the appointment, or whether the appointment had been fraudulenly obtained, or how otherwise, we cannot know. We must now take the facts as the jury have found them. If the relator was aggrieved by the instructions of the judge at the circuit, the question could have been brought before us for review. Mo such question has been raised, and we must assume that the facts are found according to law.

We must now consider as facts in this case that the relator was acting as a policeman, and had an appointment, although not valid.

The new act of 1857, by § 32, continued the police, officers and patrolmen, at the passage of that act, in the performance of their duty. The language is, they “ shall continue to do duty.”

The case of McCune (19 N. Y. Rep. 188) decides that the legislature did not by the new act make any appointments to office. . The legislature had no authority to make appointments. They might direct a body of men, whose duty it was by pre-existing laws to perform certain services, to continue the performance of the same services under a new law, having a different board of commissioners for their direction. Was the relator excluded from the operation of the new law of 1857, directing the existing police force to continue to do duty P If not, he was directed to continue to perform the same duty which he had before done, and it was the duty of the new board to permit and direct the exercise of the powers and functions which the law made it the duty of the relator to perform, and not to oust, obstruct or remove him, except by due course of law.

It appears to me that the intention of the legislature was that the existing police force, as it was on the day when the new law went into effect, were to continue, by the mandate of the law, to do duty as officers and patrolmen under the new board, whether the men were in de facto or de jure. There was no opportunity for the new board to make distinctions among the members of the force, as to the form or regularity of their appointments. The duty of winnowing the bad from the good; those who were in by invalid titles or by no title, from those whose title to office was complete; those who were not qualified by reason of inability to read or write, or from any other cause, from those who were; all devolved upon the new board of police, under the power of removal, contained in the 7th section of the act of 1857, on written charges, after an opportunity to be heard in defense.

The new board were not authorized by their simple fiat to exclude or oust any member from the then existing police force. This authority could only be exercised under the power of removal.

The relator is entitled to the writ of mandamus to restore him, &c.