People ex rel. Dunn v. Ham

• Decision Date: 16 April 1901
• Citation: 60 N.E. 191,166 N.Y. 477
• Parties: PEOPLE ex rel. DUNN v. HAM, Com'r.
• Court: New York Court of Appeals Court of Appeals

166 N.Y. 477

60 N.E. 191

PEOPLE ex rel. DUNN

v.HAM, Com'r.

Court of Appeals of New York.

April 16, 1901.

Appeal from supreme court, appellate division, Third department.

Application by the people, on the relation of Thomas P. Dunn, for a writ of mandamus to Fred C. Ham, commissioner of public safety of the city of Albany, directing him to reinstate relator as station-house keeper in said city. From an order of the appellate division (68 N. Y. Supp. 298) affirming an order of the special term (66 N. Y. Supp. 264) granting such writ, defendant appeals. Reversed.Arthur L. Andrews, for appellant.

James J. Farren, for respondent.

MARTIN, J.

Whether, for the purpose of an economical administration of municipal affairs, the common council of the city of Albany possessed power to abolish the position of station-house keeper, is the only question involved upon this appeal. The Albany police department was organized in 1870 by title 12 of chapter 77 of the Laws of that year, and, as amended by chapter 495 of the Laws of 1873, it was in force when the statute for the government of cities of the second class went into effect. Section 2 of title 12, Laws 1870, provided, ‘The powers and duties connected with and incident to the police government of the city of Albany shall be * * * vested in, and exercised by a board of police commissioners, and by a police force composed of a chief of police, captains of police, sergeants of police, patrolmen of police, stationhouse keepers, and one surgeon of police.’ Section 6 of the same title conferred exclusive power upon the police board to appoint 1 chief, not to exceed 7 captains, not to exceed 12 sergeants, and not to exceed 100 patrolmen, 5 station-house keepers, supernumerary patrolmen not to exceed 20, 1 surgeon, and not more than 2 clerks. Section 9 explains the meaning of the term ‘police force,’ by expressly stating of whom it shall consist. It declares that ‘the said police force shall consist of a chief of police, with so many captains of police, sergeants of police and patrolmen as may be hereinafter especially allowed and provided for.’ While section 2 declares that the powers and duties connected with and incident to the police government of the city shall be vested in and exercised by a board of police commissioners, and by a police force composed of the officers and persons mentioned, including station-house keepers and a surgeon, yet it is manifest that station-house keepers and the surgeon were no part of the actual police force, as section 9 specially defines of whom that force shall consist, which includes neither. Although station-house keepers, as well as the surgeon of police, were doubtless appointed to discharge certain duties connected with and incident to the police government, yet they were not included in, nor did they form a part of, the police force of the city, as defined by the statute. Hence, so far as the decisions of the courts below were based upon the theory that station-house keepers were a part of the police force, they cannot be upheld. The position of station-house keeper was abolished after the passage of the act for the government of cities of the second class, which must be considered in determining the power of the common council to abolish the place. The act of 1898 (chapter 182) effected a repeal of all statutes and ordinances which were inconsistent with its provisions. Section 482. It conferred all the legislative power of the city upon its common council, to which it gave authority to enact ordinances, not inconsistent with the laws of the state, for the government of the city, the management of its business; the preservation of good order, peace, and health; the safety and welfare of its inhabitants; and the protection and security of their property. Section 12. The evident purpose of that section was to confer upon the common council entire legislative authority as to matters relating to the municipal government, except as limited by that statute and others not inconsistent with its provisions. This is clearly indicated by the act itself, and was plainly avowed by the commission which reported it to the legislature. Senate Documents 1896, vol. 5, No. 24. That the legislature might have passed an act abolishing the office of station-house keepers, and otherwise regulating and affecting the police government of the city, cannot be questioned. Instead of passing such an act, it conferred upon the common councils of cities of the second class general power to enact ordinances for the protection and security of property, the preservation of good order, and for the safety and welfare of their inhabitants, which plainly includes the regulation of the police and police power of such cities. The legislative power thus conferred is unlimited, except by the provisions of existing laws. Hence the common council possessed the power to abolish any position or office it deemed unnecessary which was connected with or incident to the police government of the city, unless forbidden by that act or some other statute then in force.

It is not pretended that the legislation of the common council by which the office under consideration was abolished was in conflict with any statute, unless with the act of 1870 and the act in relation to the government of cities of the second class. Under the statute of 1870 no member of the police force could be removed except upon a hearing, and after writtencharges had been preferred. Section 9. Section 192 of the act of 1898 provides that ‘all officers and members of the police department, when this act...