People ex rel. O'Connor v. Girvin

• Decision Date: 09 December 1919
• Citation: 125 N.E. 587,227 N.Y. 392
• Parties: PEOPLE ex rel. O'CONNOR v. GIRVIN, Chief of Police of City of Buffalo, et al.
• Court: New York Court of Appeals Court of Appeals

227 N.Y. 392

125 N.E. 587

PEOPLE ex rel. O'CONNOR

v.GIRVIN, Chief of Police of City of Buffalo, et al.

Court of Appeals of New York.

Dec. 9, 1919.

Mandamus by the People of the State of New York, on the relation of Cain O'Connor, against Henry J. Girvin, as Chief of Police of the City of Buffalo, and another. From an order of the Appellate Division of the Supreme Court (176 N. Y. Supp. 913), affirming an order granting relator's application for peremptory mandamus, the defendants by permission appeal.

Reversed.

Crane, J., dissenting.

Appeal from Supreme Court, Appellate Division, Fourth department.

George J. Feldman, of Buffalo, for appellants.

Matthew W. Weimar, of Buffalo, for respondent.

CARDOZO, J.

In February, 1892, the relator, having passed a civil service examination, was appointed a patrolman by the police commissioners of the city of Buffalo. In February, 1904, he was designated by the superintendent of police to act as detective sergeant. He served as such until February, 1919, when his designation was revoked, and he was reassigned to duty as a patrolman. The legality of this revocation, in default of charges of misconduct, is the question to be determined.

Under the law as it stood before 1914, when the present charter of Buffalo was adopted, there was little, if any, room for difference of opinion. ‘The superintendentshall detail for detective duty such patrolmen not exceeding twelve in number * * * as he shall, from time to time select.’ Section 191 of Old Charter (Laws 1891, c. 105, as amended by Laws 1912, c. 198). ‘The patrolmen so detailed shall compose the detectives of the force, and during the time said patrolmen are detailed for detective duty they shall be known as detective sergeants, and each of them may receive for such detective service such salary as may be fixed by the board, with the consent of the common council.’ Section 191, supra. Under those provisions, detective sergeants were patrolmen detailed to detective duties. They did not take a new examination, nor receive from the commissioners a new appointment. Sections 187, 191, 200. They were designated by the superintendent for the discharge of special duties, just as they might have been detailed to preserve order at the courthouse or at places of amusement, or to render other services less rigorous than patrol duty upon the streets. Such details might be terminated at the will of the officer who made them. The faithful patrolman, if he turned out to be a poor detective, might be sent back to service on patrol. There was, it is true, a provision even then that all members of the police force should ‘hold office during good behavior,’ and should be ‘liable to removal or reduction in rank’ only upon written charges and public hearing. Section 192. But revocation of a detail was not reduction in rank within the meaningof the statute. People ex rel. Buckley v. Roosevelt, 5 App. Div. 168,39 N. Y. Supp. 78. This conclusion would have been necessary, though there had been no other expression of the Legislature's purpose, for it followed as a deduction from the essential nature of a detail. It was made still plainer, however, by a later section (section 200), which reiterated the distinction between details and appointments, and prescribed the evidence for each.

‘The board shall issue to each member of the police force a proper warrant of appointment, signed by the board and countersigned by the clerk, which warrant shall contain the date of his appointment and his rank. Each patrolman detailed to duty as a detective shall have issued to him a written order of detail, signed by the superintendent and countersigned by the clerk of the board, and the revocation of such detail shall be issued in like manner.’ Section 200.

[2][3] A new charter for the city of Buffalo was enacted by the Legislature in 1914, and took effect on January 1, 1916 (Laws 1914, c. 217). The relator insists that detective sergeants have been invested with a new status by force of its provisions. This result is said to follow from the failure to re-enact sections 191 and 200 of the old charter, and the substantial re-enactment of section 192 as section 251 of the new one. Section 191, as we have seen, authorized the detail of patrolmen to detective duty, and thereby established the class of detective sergeants. By the failure to re-enact that section, the Legislature did not intend, however, to terminate the class or change the method of selection. This is plain from two circumstances. One is that in sections 250 and 250a it recognized the class as still existing. The other is that in section 250 it preserved the rules and regulations of the department then in force, and gave them the force of law until the council of the city should otherwise prescribe. These rules and regulations are in evidence, and they characterize detective sergeants as patrolmen detailed to serve in the bureau of detectives, and prescribe the mode of designation. The failure to re-enact section 200 of the old charter is also, we think, without significance, or at least without any that is controlling. That section was not the source of the power to terminate a detail. Its only function was to prescribe the form in which appointments and details and their revocation should be certified. That subject is now...