People ex rel. Titus v. Board of Police of the Metropolitan Police District , 35 Barb. 535 ( 1861 )

Leonard, J.

These cases are in all respects similar to the case of G-orman, except that the jury have found in these cases, in addition to the findings in Gorman’s case, that the relators, since April 15th, 1857, entered on other employments inconsistent with their duties as members of the police force.

If the jury had found and stated the nature of those employments, so that this court could see that it was the duty of the board of police to remove these relators for the cause found against them by the jury, it would not he proper, within settled principles of law, to direct a mandamus to issue to compel the hoard of police to restore the relators to office. It would be useless and wrong to compel the restoration of delinquent officers when it would be the duty of those having the authority so to do, immediately to remove them.

But in these cases the jury have omitted to inform us what was the nature of the inconsistent employments referred to, and when the relators were engaged in such employments. If it was after the defendants had commenced to withhold from the relators the right to exercise the offices in which the act of the legislature of April 15th, 1857, had continued them, such employments are of no moment here. These inconsistent employments may have consisted in observing obedience to the authority of the old board of police, and acting in hostility to the new, during a certain period after the new act was passed. The court of appeals, as well as this court, have decided that this latter cause would be no ground for removing the officers.

Are we then bound to intend that these inconsistent employments were some other than those above supposed, and that they were of such a nature that the least measure of punishment that the board of police could properly inflict would be expulsion or removal from office ? I think not. If the facts, in respect to the employments referred to, are of such a nature that removal from office ought to follow, it will still be within the power of the board to cause it to be immediately done. It is no part of the duty of this court to uphold an exclusion from office by intendment, where we are not certain that the existing facts would and ought, in right and justice, to produce a judgment of exclusion or removal by the competent authority. Here the fact found is indefinite in time and character. The inconsistent employments referred to may be trifling or temporary in character, or have occurred at a time, or in a manner, not to require the infliction of such a consequence as forfeiture of office.

The relators are entitled to the writ of mandamus, &c.