People ex rel. Cline v. Robb

• Decision Date: 14 March 1891
• Citation: 27 N.E. 267,126 N.Y. 180
• Parties: PEOPLE ex rel. CLINE v. ROBB et al., Commissioners.
• Court: New York Court of Appeals Court of Appeals

126 N.Y. 180

27 N.E. 267

PEOPLE ex rel. CLINE

v.ROBB et al., Commissioners.

Court of Appeals of New York.

March 14, 1891.

Appeal from supreme court, general term, first department.

Louis J. Grant, for appellant.

D. J. Dean, for respondents.

O'BRIEN, J.

The relator was a member of the park police in the city of New York, which is a special force, organized by statute, and under the exclusive control of the board of park commissioners, for the sole purpose of preserving order in Central park and the other public parks in the city. On the 23d of October, 1889, the board was advised by its surgeon that the relator, then on the sick list, was suffering from mental disease. The surgeon also suggested to the board that the relator should be examined by some expert in such diseases, in order that his fitness for the performance of police duty in the parks might be determined. The board caused such an examination to be made by an eminent expert in mental diseases, who reported that, in his opinion, it would be unsafe to continue the relator on the park police force, as he was suffering from ‘organic and progressive disease of the brain, of an incurable character.’ On being informed of this fact the board, on November 9, 1889, passed a resolution removing the relator from the force, and dropping his name from the roll. The resolution specifying the cause of removal was entered in the minutes of the proceedings of the board. The relator procured a writ of certiorari to review the action of the board in dropping his name from the roll of park policement. The general term (11 N. Y. Supp. 383) dismissed the writ, and from that order the relator appeals to this court. It is urged, in support of the appeal, that the action of the board in dismissing the relator was illegal, as there was no trial or statutory investigation, or opportunity given to the relator to be heard. With respect to the tenure or duration of a public employment, such as the relator had at the time of his dismissal, the general rule is that where the power of appointment is conferred in general terms, and without restriction, the power of removal, in the discretion and at the will of the appointing power, is implied and always exists, unless restrained and limited by some other provisions of law. People v. Fire Commissioners, 73 N. Y. 437;Bergen v. Powell, 94 N. Y. 591; Ex parte Hennen, 13 Pet. 230; Laimbeer v. Mayor, etc., 4 Sandf. 109; Avery v. Inhabitants of Tyringham, 3 Mass. 177;Blake v. U. S., 103 U. S. 227;People v. Thompson, 94 N. Y. 451;People v. Mayor, etc., 5 Barb. 43.

This general rule was embodied in the constitution of this state in the following language: ‘When the duration of any office is not provided by the constitution, it may be declared by law, and, if not so declared, such office shall be held during the pleasure of the authority making the appointment.’ Article 10, § 3. The numerous cases to be found in the books in which this court has reviewed the action of the police commissioners of the city of New York, in dismissing members of the general police force, has no application to this case. The police department and the general police force of the city of New York is organized and exists under a series of statutes, passed from time to time, and now collected in chapter 8 of the consolidation act. Laws 1882, c. 410, §§ 250-314. These statues confer power upon the board of police commissioners to enact rules and regulations for the government of the force. The powers and privileges of the members of the force are enumerated and specified. Provision is made for a pension fund for the benefit of the families of such members of the force as die from injuries in the service, and for the benefit of the members themselves, when disabled in the service, or upon retirement, after a certain period of service, upon the conditions specified in the statute. The members of this force cannot be dismissed at the will of the appointing power, because the power of removal in such cases is expressly restrained by statute. The legislature has enacted that ‘members of the police force shall be removable only after written charges shall have been preferred against them, and after the charges have been publicly examined into, upon such reasonable notice to the person charged, and in such manner of examination, as the rules and regulations of the board of police may prescribe.’ Laws 1882, c. 410, § 272. It is by virtue of this provision of the statute, concerning the organization and government of the general police force, that a member thereof is entitled to a hearing, in the nature of a trial, upon written charges, and a review of the action of the police board by the courts. People v. Police Commissioners, 67 N. Y. 475. These provisions of law, however, do not apply to the relator, as the park police derive their appointment, powers, and privileges from another statute, to which we must look for the relator's right to...