People ex rel. Grace v. Board of Police Commissioners of the City of Troy , 43 How. Pr. 385 ( 1872 )

By the court, Miller, P. J.

—I think that the commissioners had power to revoke the relator’s appointment. The rules and regulations of the commissioners prescribe certain qualifications for persons appointed, and among others, that such persons shall be not less than twenty-one, nor over forty years of age, when, therefore, a person appointed arrives at the age of forty years, he becomes disqualified, and the right to declare that he is such is incident to the general powers of the commissioners. If it were otherwise then the rule would be of no avail after an appointment had once been made.

The question whether the relator had arrived at the age which disqualified him, was then a fair subject of inquiry and examination, and after notice to the relator, the commissioners were authorized to proceed and determine how the fact was.

Nor is it, I think, any answer to this view of the subject, to say, that the relator was appointed before the board had adopted any rules as to qualifications ,• for if such was the fact, he would, nevertheless be bound by any subsequent rules which the commissioners had authority to adopt. He had no reserved rights which gave him power to retain the office, for an unlimited period of time beyond that prescribed for other members of the force, and was subject also with them, to such general regulations as might be adopted. Were it otherwise, he might remain to an extreme old age, without any power of removal by the board of commissioners. Section 11 of the act provides, that “ all officers and members of the police department subject to removal for cause hereinafter specified, shall hold their offices during good behavior, or as each shall well and faithfully obsérve and execute all the rules and regulations of said board, &c. (S. L. of 1870, p. 1225). This provision does not confer any exemption from a compliance with the rules and regulations of the board lawfully established, and although no removal could be made, except for the causes specified, yet, when the officer holds in violation of any rule, I think, the appointment can be revoked. By section 22 of the act, the commissioners are empowered u to enact and from time to time to modify and repeal, by-laws, ordinances, rules and regulations of general description,” &c. u Wherein shall be specified the modes of appointment to, and removal from office of all members of said police force, and the manner of discipline of said police,” &c. Any new rule would apply to those in office as well as such as might afterwards be appointed, and under this provision, the commissioners were authorized as a matter of discipline to fix and prescribe the age of its officers.

As the commissioners had a right to determine whether the relator was disqualified from acting under the rules and regulations which had been adopted, their action cannot be disturbed, unless they have transcended their powers.

And as they clearly had jurisdiction even if they acted unlawfully, the remedy was not by mandamus, but by a common law certiorari. This would prevent the subject of their action for review, and in such a proceeding, the court may go beyond the inquiry,. whether the inferior tribunal had jurisdiction, and examine the case upon the whole evidence, to ascertain whether any error had been committed in the proceedings before the inferior tribunal (The People ex rel., Cook agt. The Board of Police, 39 N. Y., 506). This and other recent cases enlarges the office of a common law certiorari.

The cases relied upon to establish that a mandamus was the proper remedy, all present the question of jurisdiction, and do not involve a trial and determination where there was no question as to the jurisdiction (19 N. Y., 188; 35 Barb., 535 ; 27 Barb., 487; 30 How., 78).

In The People agt. The Board of Police, (26 Barb., 481), it was held distinctly that a certiorari to review the proceedings of the board of police, in removing a policeman, was the appropriate remedy for the party aggrieved (See also 27 N. Y., 378; 33 N. Y., 382). The relator’s remedy was, therefore, by certiorari and not by mandamus.

The special term was right in refusing a mandamus, and the order must be affirmed.