In re Hicks

• Citation: 133 F. 739
• Parties: In re HICKS.
• Decision Date: 05 January 1905
• Court: U.S. District Court — Northern District of New York

133 F. 739

In re HICKS.

United States District Court, N.D. New York.

January 5, 1905

Ray B Smith, for the bankrupt.

W. W Magee (Corp. Counsel), for John P. Quigley.

Application for an injunction enjoining and restraining Patrick Caulfield and James Caulfield, creditors of said bankrupt, and John P Quigley, chief of the fire department of the city of Syracuse, N.Y., and also such others as may be aiding and abetting, from further prosecuting against said bankrupt Allen M. Hicks, who is a member of the fire department of the city of Syracuse, N.Y., the charge 'that the said Allen M. Hicks has been guilty of neglect of duty. ' The specification under such charge is 'that said Allen M Hicks has thus far failed to pay a bill of $37.10 held by P. Caulfield & Son. When restored to duty on May 18th, he agreed to pay this as well as other bills, and up to the present time he has failed to do so.' RAY, District Judge.

The bankrupt, Allen M. Hicks, is a member of the fire department of the city of Syracuse, N.Y., and has been for a long time. At some time and for some reason not appearing, charges were preferred against said Hicks, and he was suspended from duty, and, it would see, removed from his position as fireman. However this may be, his suspension and removal were declared illegal by the Supreme Court of the state of New York, and Hicks was restored to duty, not long before the institution of this proceeding. His pay as fireman is $75 per month, and his illegal suspension from duty, of course, crippled him to some extent financially. He is a married man and a housekeeper. A long time before filing his petition in bankruptcy he had mortgaged his household furniture and belongings for as much or more than they are worth. The inventory and schedules filed by Hicks in this proceeding showed that he owes somewhere from six to eight hundred dollars. There is no charge or evidence of immorality on the part of Hicks, or that he has ever failed in any respect to faithfully perform his duties as fireman, and obey all orders and directions of his superiors, except in the one particular that he has not paid a debt owing by him to P. Caulfield & Son, and which debt amounts to about $37. After Hicks was restored to duty, as above stated, it is alleged, and is probably true, that he promised to pay his indebtedness as rapidly as he could, and there is no evidence that he has not done so; but it is conceded that he is owing various debts, of the total amount above stated, which he has not paid.

On or about the 26th day of November, 1904, said Allen M. Hicks filed his petition and schedules in due form in voluntary bankruptcy in this court. On the 28th day of November he was duly adjudicated a bankrupt, and the time and place for the first meeting of his creditors were fixed. Shortly after Hicks was restored to duty, . Caulfield & Son filed their bill, amounting to the sum of $37.10, with the commissioner of public safety of the city of Syracuse; and thereupon the commissioner of public safety, in substance and effect, directed John P. Quigley, the chief of the fire department of said city, to take proceedings against said Hicks for the nonpayment of such indebtedness. It appears to the satisfaction of the court, and is evident, that this proceeding against Hicks now pending for his removal, and to which attention will be called more particularly, was the result of a determination on the part of the commissioner of public safety and of the chief of the fire department to get rid of Hicks, rather than a desire to promote, maintain, or defend the discipline of the fire department. The affidavit of said John P. Quigley is full of contradictions and inconsistencies, when carefully read and considered. Among other things, he testifies that he (Quigley) is the sole party bringing the charges, and that P. Caulfield & Son, nor either of them, had any knowledge that he was to bring such charges, and that said P. Caulfield & Son in no way advised, procured, or influenced him to make the charges against Hicks. Further on he says that Allen M. Hicks was reinstated in the fire department of the city of Syracuse on the 19th day of May, 1904; that shortly thereafter he was informed by the commissioner of public safety (a Mr. Bowen) that Hicks was indebted to various merchants in the city of Syracuse for necessary personal and household expenses incurred during his term of office as fireman. He says that the commissioner of public safety instructed him (Quigley) to see to it that Hicks pay up those debts, but he was instructed to give him a reasonable time after his reinstatement to do so. He then testifies that on the 29th of June, 1904, the firm of P. Caulfield & Son filed in the fire department a bill for groceries and provisions sold to said Hicks, amounting to $37.10, and that on the same day the said bill was filed he (deponent) received a letter from the commissioner of public safety inclosing the statement filed by P. Caulfield & Son, and directing him to see to it that Hicks gave it his attention. Shortly after July 1st Quigley was informed by the commissioner that Hicks, through his counsel, had filed a statement of his indebtedness. It is self-evident that, with the indebtedness stated existing against Hicks, he, a married man, residing in the city of Syracuse, was unable to support himself and wife and pay off this indebtedness, or even any considerable part of it, prior to the time this proceeding to remove Hicks was instituted. The witness further solemnly testifies-- true, upon information and belief-- that the said Hicks has adequate remedies at law in the courts of the state of New York in case he is improperly or illegally removed from office, and that the District Court of the United States has no jurisdiction in this matter. There is also an affidavit made by the Caulfields to the effect that Hicks is indebted to them in the sum stated, and that neither of them had any knowledge, prior to the time that Hicks was suspended by the commissioner of public safety of the city of Syracuse from his position in the fire department on the charges preferred by Quigley for the nonpayment of their bill, that he was to be suspended; and both testify that they have not in any way advised, procured, or influenced, or attempted or intended to advise, procure, or influence, said Quigley to prefer charges against said bankrupt for failing to pay their bill. They did file their bill with the commissioner of public safety, and they must have known when they filed that bill that it would probably set the commissioner of public safety and the chief of the fire department in motion, under the ordinances of the city, to which attention will be directed, for the removal of Hicks; and this court is of the opinion and believes that they filed the bill for the express purpose of having charges preferred and proceedings instituted to remove Hicks for the nonpayment of said bill, hoping thereby to secure their pay; and this court believes, from the affidavits, that the commissioner of public safety was quick to seize upon the filing of the bill, even if he did not procure it to be filed, as an excuse for setting the chief of the fire department in motion to prefer charges, hoping thereby to secure the removal of Hicks, as they had failed in their prior proceeding for that purpose. There is not a particle of evidence that the nonpayment of this indebtedness in any way affected or impaired the discipline of the fire department of the city of Syracuse. It may be and may not be well to have such a provision, as will be recited, among the ordinances of the city; but it would be harsh, unjust, and even barbarous, to remove from the fire department of said city a member thereof, otherwise irreproachable, who should be owing debts he could not pay by reason of sickness or some calamity beyond his power to avert.

The charge preferred against Hicks by Quigley reads as follows:

'City of Syracuse, Department of Public Safety.

'Syracuse, N.Y., December 7, 1904.

'To Ralph S. Bowen, Commissioner of Public Safety, Syracuse, N.Y.-- Sir: I hereby prefer charges and specifications against Allen M. Hicks as follows:

'Charge No. 1. That the said Allen M. Hicks has been guilty of neglect of duty.

Specification. For the violation of Rule 8 of Article 18 of the rules and regulations of the Fire department. That said Allen M. Hicks has thus far failed to pay a bill of $37.10 held by P. Caulfield and Son. When restored to duty on May 18 he agreed to pay this as well as other bills, and up to the present time he has filed to do so.

'All of which is respectfully submitted.

'Dated the 7th day of December, 1904.

'John P. Quigley, 'Chief Fire Department.'

On the same day said R. S. Bowen, commissioner of public safety, prepared a notice to Hicks of said charge, and cause same to be served on him. It will be noted that the filing of charges by Quigley rapidly followed the filing by Hicks of his petition in bankruptcy.

In his schedules of indebtedness, filed with the clerk of this court on or about the 26th day of November, 1904, said Hicks included and specified honestly his indebtedness to P. Caulfield & Son, as well as all his other indebtedness. There is no pretense or claim that he owns any real estate, or that he has concealed any property. He lives, and for years has lived, in a rented house. The conclusion is irresistible that this charge was preferred and is being pressed for the reason that Hicks is taking the benefits of the national bankruptcy law, and for the purpose of either forcing Hicks to pay in full, or lose his position in the fire department of the city of Syracuse.

Syracuse is a city of the second class, and sections 201, 203, and 204 of charter of...