People ex rel. Clarke v. Roosevelt

• Decision Date: 19 November 1901
• Citation: 61 N.E. 783,168 N.Y. 488
• Parties: PEOPLE ex rel. CLARKE v. ROOSEVELT et al.
• Court: New York Court of Appeals Court of Appeals

168 N.Y. 488

61 N.E. 783

PEOPLE ex rel. CLARKE

v.ROOSEVELT et al.

Court of Appeals of New York.

Nov. 19, 1901.

Appeal from supreme court, appellate division, First department.

Certiorari by the people, on the relation of Francis J. Clarke, against Theodore Roosevelt and others, composing the board of police of the police department of the city of New York. From an order of the appellate division (40 N. Y. Supp. 1147) confirming the proceedings of defendants in dismissing relator from the police force of the city of New York, relator appeals. Affirmed.

Bartlett, Landon, and Cullen, JJ., dissenting.

Edmund L. Mooney and Frederick A. Card, for appellant.

John Whalen, Corp. Counsel (Theodore Connoly and Terrence Farley, of counsel), for respondents.

HAIGHT, J.

I adopt the rule sanctioned in the case of People v. French, 119 N. Y. 502, 23 N. E. 1061, to the effect that: ‘In determining the guilt of a police officer who is on trial for charges preferred against him, the police commissioners cannot act upon their own knowledge. The charges must be tried upon evidence, and the guilt must be established by evidence produced before the commissioners upon the trial. * * * But in inflicting the punishment they may take into consideration the evidence, as well as their own knowledge of the police officer, and inflict such punishment, authorized by the rules and the statutes, as, in their judgment, the case, in view of all the circumstances, requires.’ Has this rule been violated by the commissioners in the case under consideration? The respondents in their return to the writ of certiorari state that at the termination of said trial ‘the proceedings and the relator's record were duly considered by your respondents at a regular meeting of the board of police held on the 9th day of August, 1895; and after due consideration thereof your respondents determined, after the exercise of their best judgment and discretion, that the relator was guilty as severally charged, and they thereupon passed resolutions * * * declaring, ordering, and adjudging that the several charges were true, and dismissing the relator from the police force of the city of New York.’ It thus is apparent that the adjudication of guilt and the imposition of punishment both took place at the same meeting, and were accomplished by one resolution of the board. As we have seen, the board of police had the right to consider the relator's record in determining the character of the punishment that should be imposed, but not in determining the question of his guilt. The board therefore had the right to have the relator's record present at the meeting, and to consider it in determining the punishment. Whether the commissioners did more is not clear from the return, and in this respect it may be treated as ambiguous. To aid us in determining the true intent and meaning of the board in the return to which we have alluded, we find that the commissioners have also returned all of the papers and proceedings had before the board, among which is the written decision of the commissioners,with the resolution passed by them, adjudging the relator guilty of the charges, and removing him from the police force. In this decision it appears that the judgment as to the relator's guilt was based upon the proofs produced before them. I think this instrument, returned by the board as its final adjudication and determination in the case, makes clear the intent and meaning of the board in its return to which we have alluded; and that is that the guilt of the relator was determined upon the proofs produced before the board, and that his record was only considered in determining the punishment.

The order should be affirmed, with costs.

BARTLETT, J. (dissenting).

The relator was tried on two distinct charges, similar, except as to date; one referring to May 31, 1895, and the other to June 1, 1895. The charge was that on both of these days relator was so much under the influence of intoxicating liquor as to unfit him for police duty during his tour of patrol. After a hearing before the commissioners on each charge, they were respectively adjudged to be true, on the 9th day of August, 1895, and the relator was dismissed from the police force. The evidence was conflicting, and it cannot be said that the findings of the commissioners were not warranted by the proofs. It is equally true that the record discloses a state of facts that would have sustained an adjudication in favor of the relator, a veteran of the Civil War, who had served about 18 years on the police force of the city of New York. The contention that there was no evidence supporting the charges cannot be sustained.

A single question of law is presented by this appeal. It is urged that the commissioners erroneously considered the official record of the relator, kept by the police department during his term of service, on the question of his guilt. That the relator's record was so considered appears by the return made by the respondents to the writ of certiorari, it being stated therein as follows: ‘That at the termination of said trials or hearings the said charges and specifications, the proceedings, and the relator's record were duly considered by your respondents at a regular meeting of the board...