People ex rel. Gambling v. Board of Police for the Metropolitan Police District , 26 Barb. 481 ( 1858 )

By the Court, Davies, P. 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 New 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 their 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. Notice to the accused was to be given, to afford Mm an opportunity to be heard in Ms defense. 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 tinder oath, and the testimony in such case was to be reduced to writing, and the decision filed with 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 police 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 qualifications, enumerative 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 Mm of being heard in his defense. Section 32 of this act declares that the police of the city of Hew York, after the first meeting of the board of police, (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 police adopted rules and regulations relating to the mode of trial and removal from office of members of the police force. Buie sixth provides that charges preferred against any members of the police force must be in writing, and sworn to or affirmed to, with the name and residence of the complainant. If stated to be on information and 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 ó'r inspectors, who might charge simply in writing. All siich charges must he filed with the- chief clerk. Eule seventh prescribes that when charges are filed, the chief clerk shall notify the person complained of, to call áhd 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 them. 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 for such examination. Eotice 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 Justice Davies in the case of McDermott against these defendants, ^(a) 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 defense.

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 v. Ellis, 2 Ker. 575.)

Eotice of the charges preferred against the relators, and notice of the time and place of trial thereon, not having been given to them in conformity to law, the defendants had no jurisdiction over them, and their order of femoval, 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 tinder the act 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.

[New York General Term, February 1, 1858.

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 have appraised the damages of an individual without giving him an opportunity to be heard, or to produce testimony. (Fonda v. Canal Appraisers, 1 Wend. 288.) It also lies to review the proceedings of courts martial. (Rathbun v. Sawyer, 15 Wend. 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 Denio, 554.) And this court, in the Matter of Bruni, (1 Barb. 193,) set aside the proceedings had before a justice, on the ground of want of jurisdiction.

We are therefore of 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.

Davies, Clerke and Sutherland, Justices.]

(a) 25 Barb. 635. 5 Ab. 422.