People ex rel. Hayes v. Waldo

• Decision Date: 16 June 1914
• Citation: 105 N.E. 961,212 N.Y. 156
• Parties: PEOPLE ex rel. HAYES v. WALDO, Commissioner of Police Dept., et al.
• Court: New York Court of Appeals Court of Appeals

212 N.Y. 156

105 N.E. 961

PEOPLE ex rel. HAYES

v.WALDO, Commissioner of Police Dept., et al.

Court of Appeals of New York.

June 16, 1914.

Appeal from Supreme Court, Appellate Division, First Department.

Certiorari by the People of the State of New York, on relation of Cornelius G. Hayes, against Rhinelander Waldo, Commissioner of the Police Department of the City of New York, and Douglas I. McKay, First Deputy Commissioner of Police of the Police Department of the City of New York. From an order of the Appellate Division (159 App. Div. 901,143 N. Y. Supp. 1138), dismissing the writ and unanimously affirming the proceeding of defendant Douglas I. McKay, as acting Police Commissioner, in dismissing relator from the police force of the city of New York, relator appeals. Affirmed.Simon Fleischmann, of Buffalo, for appellant.

Frank L. Polk, Corp. Counsel, of New York City (Terence Farley, of New York City, of counsel), for respondents.

CHASE, J.

For about 26 years prior to August, 1912, the relator, Cornelius G. Hayes, was a member of the police force of the city of New York. From July 7, 1911, he had been detailed as an inspector of police. From August 30, 1911, he was in charge as inspector of the Fourth inspection district which included that part of the city east of Fifth avenue, between Twenty-Seventh and Forty-Second streets, all of that part of the city between the Hudson and East rivers, and between Forty-Second and Fifty-Ninth streets, and that part of the city west of Central Park between Fifty-Ninth and Eighty-Sixth streets. The fourth inspection district includes that part of the city commonly known as the ‘Tenderloin.’

In an afternoon edition of one of the metropolitan newspapers on August 16, 1912, there was published what purported to be an interview with one of the inspectors of the New York police in which it was asserted that the inspector said in substance that he had been given orders by the police commissioner not to proceed against disorderly houses or obtain evidence against them. On the same day the inspectors of police in the borough of Manhattan were called before the police commissioner. After an interview between the commissioner and the relator in the presence of his fellow inspectors and another, in which the relator was called upon to report in regard to his instructions relating to disorderly houses, and he had made a statement in regard thereto, he was told by the commissioner that his statements were absolutely false and he was thereupon and immediately reduced to the grade of captain and transferred to the Ninety-Ninth precinct and further suspended pending the trial of charges that the commissioner directed be made against him. A written charge against the relator was made and filed on August 26, 1912, and is as follows:

‘August 26, 1912.

‘To the Police Commissioner of the City of charges that the commissioner directed be

‘I hereby charge Captain Cornelius G. Hayes of the 99th precinct with making a false official statement.

‘Specifications.

‘In this, to wit:

‘That the said Cornelius G. Hayes being an inspector of police and in command of the Fourth inspection district, did make to the police commissioner a statement in words to the effect that he, Cornelius G. Hayes, had been directed by the police commissioner not to obtain evidence against premises known as houses of prostitution, which statement was false and was known by the said Cornelius G. Hayes to be false.

‘This in the office of the police commissioner at or about 4:45 p. m. on August 16th, 1912.

‘Complainant: James E. Dillon,

‘Fourth Deputy Commissioner.

‘Witnesses:

‘Police Commissioner R. Waldo.

‘Inspector Cornelius F. Cahalane.

‘Inspector John Daly.

‘Inspector William J. Lahey.

‘Inspector George F. Titus.

‘Stenographer to the Commissioner Frank Donahue.

‘James E. Dillon,

‘Fourth Deputy Commissioner.

‘Approved Aug. 19, 1912.

‘James E. Dillon,

‘Fourth Deputy Com'r.’

A copy of the charge was served upon the relator and he pleaded not guilty thereto. His trial commenced August 30, 1912, before Douglas I. McKay, first deputy police commissioner, and lasted for several days. The relator appeared in person and by counsel. At the close of the trial the decision was reserved . Subsequently the relator was found guilty, and on September 14, 1912, he was dismissed from the police force. A writ of certiorari to review the proceeding against the relator was obtained and such writ and the return thereto were heard by the Appellate Division of the first department where the proceeding was unanimously affirmed and the writ of certiorari dismissed. An appeal has been taken from such order of dismissal to this court.

The order of the Appellate Division dismissing the writ of certiorari and unanimously affirming the proceedings before the commissioner necessarily includes a decision that there was evidence supporting or tending to sustain the finding of the commissioner that the relator is guilty of the charge made against him. People ex rel. Stephenson v. Bingham, 205 N. Y. 168, 98 N. E. 384.

[2] It is now claimed by the appellant that the charge against the relator was insufficient as matter of law, assuming it to be true, to warrant his dismissal. This claim on the part of the appellant is first made in this court. No such claim was made at the trial, in the petition for the writ of certiorari, or in the brief of the relator in the Appellate Division.

The relator was found ‘guilty as charged’ and we will assume that the question whether the charge is sufficient, assuming it to be true, to warrant his dismissal is a question of law for consideration in this court. The duty of members of the police force is stated in section 315 of the charter of the city of New York (L. 1901, c. 466), and so far as material in this case is as follows:

‘Sec. 315. It is hereby made the duty of the police department and force, at all times of day and night, and the members of such force are hereby thereunto empowered, to especially preserve the public peace, prevent crime, detect and arrest offenders, * * * carefully observe and inspect all places of public amusement, all places of business having excise or other licenses to carry on any business; all houses of ill-fame or prostitution, and houses where common prostitutes resort or reside; all lottery offices, policy shops, and places where lottery tickets or lottery policies are sold or offered for sale; all gambling-houses, cock-pits, rat-pits, and public common dance houses, and to repress and restrain all unlawful and disorderly conduct or practices therein; enforce and prevent the violation of all laws and ordinances in force in said city; and for these purposes, to arrest all persons guilty of violating any law or ordinance for the suppression or punishment of crimes or offenses.’

It is also provided by section 285 of said charter that:

‘Every member of the police force shall have issued to him, by the police department, a proper warrant of appointment. * * * Each member of the police force shall, before entering upon the duties of his office, take an oath of office and subscribe the same before any officer of the police department who is empowered to administer an oath.’

The police commissioner has power, control, and authority over the members of the police force. The instructions alleged to have been given by the commissioner to the relator would, if actually given by him, have shown that the commissioner was untrue to his duties as police commissioner, and to the oath that he had taken, and that by such instructions he sought to coerce the relator to disobey the charter of the city and violate his personal oath as a member of the police force. An important part of the charge and specifications against the relator is that the relator's alleged statement of instructions from the police commissioner were wholly false and untrue and known by the relator to be false and untrue.

The relator falsely charged his superior officer with giving instructions which, if actually given by him, would show that he, as the head of the department, was unmindful of his duty and his official oath and consequently unfit to occupy a position of any kind in the police department. The fact that the statement was made by the relator in response to questions put to him by the commissioner does not change its effect.

The question whether such instructions had been given by the commissioner to the relator was then under consideration. The importance of determining the true relation between the commissioner and the police inspectors was very great. If there had been or was a misunderstandingamong the members of the police department in regard to some detail of the work, the good of the department required that it be honestly and truthfully discussed and that a complete understanding of what was said of such importance as and his subordinates be reached.

The relator reported to his superior at his request, but according to the charge falsely, and with knowledge of its falsity, asserted in substance that the commissioner, as the head of the department, had directed him to be false to the city and to himself. The position of the relator is that his statement is true, and, if true, his position, of course, would be entirely different. It is unnecessary at this time to consider what would have been the relator's duty to himself and to the public if the statements and instructions alleged to have been given to him by the commissioner were true. The relator has been tried and found guilty of the charge, and his guilt has been sustained by the unanimous decision of the Appellate Division. We are considering the question at this time wholly from the standpoint of the finding that the relator is guilty as charged. We have no authority to consider the question of fact. People ex rel. Stephenson v. Bingham, supra.

The charge is of very much more importance than a mere difference with the commissioner as to the...