People ex rel. Hogan v. French

• Decision Date: 11 March 1890
• Citation: 119 N.Y. 493,23 N.E. 1058
• Parties: PEOPLE et rel. HOGAN v. FRENCH et al., Police Commissioners.
• Court: New York Court of Appeals Court of Appeals

119 N.Y. 493

23 N.E. 1058

PEOPLE et rel. HOGAN

v.FRENCH et al., Police Commissioners.¹

Court of Appeals of New York.

March 11, 1890.

Appeal from supreme court, general term, first department.

The police commissioners of New York city dismissed the relator from the police force for ‘conduct unbecoming an officer.’ That order was affirmed by the supreme court, general term, on certiorari, and relator appealed.

RUGER, C. J., and GRAY, J., dissenting.

John M. Tierney, for appellant.

W. H. Clark, Corp. Counsel, ( D. J. Dean, of counsel,) for respondents.

FINCH, J.

I am unable to resist the conviction that, upon the record returned to us in this case, the charge against the relator was wholly and essentially unproved, and that he was guilty of no offense whatever. The charge was ‘conduct unbecoming an officer;’ and the specification, that, at a named date and place, he was so much under the influence of liquor as to be unfit for duty. The facts established were that he had been upon the force for upwards of 15 years, and that during all that period his record had been a very excellent one; the sergeant under whose command he had served saying upon the hearing, and expressing the greatest pleasure in making the declaration, that he was a first-class officer. For 15 years he had drank no intoxicating liquor, so that there was about him no taint of evil habit to suggest a possible yielding to temptation. If the fact be deemed somewhat remarkable, it is significant that nothing to the contrary was found in the record of his service; and the sergeant, who must have known him thoroughly and well, vouched for his truthfulness by saying that he thought his statement was correct in every particular. The relator was on duty during the railroad strike in the early days of the year 1889, when nearly all the street-cars in the city were abandoned by their drivers, and their movement resisted. For five days he had been continuously employed in guarding the cars, and repelling angry and dangerous attacks upon them. On the morning of the fifth day, which was severely cold, he was ordered to the Sixth-Avenue railroad station, without opportunity to get his breakfast, and was detailed to guard the moving cars, upon the front platforms of which he rode up and down until the middle of the afternoon, when he became faint and ill. He reported his sickness to Sergeant Norton, who says that he took him off the cars, and advised him to report sick; but relator said that, in view of the trouble, he thought it would be mean to do so, and persisted in staying on duty. Later, he took one drink of brandy and peppermint, to relieve his illness; and, not being accustomed to it, some degree of intoxication followed. The surgeon saw him at 8 o'clock, and says: ‘His breath smelled slightly of liquor. He could walk steadily, and talk coherently. His speech was a little thick. I was of the opinion that he had been drinking. He was not intoxicated at the time.’ The sergeant says he reported sick after the strike was over. On this state of facts, he was dismissed from the force; and the question raised is whether they furnished any evidence of breach of discipline, or violation of the rules of the department.

The general term, with undisguised reluctance, affirmed the order upon the authority of our decision in People v. French, 110 N. Y. 494, 18 N. E. Rep. 133. I think that they misapprehended its scope and meaning, and viewed it as establishing a rigid and arbitrary rule which left the action of the police commissioners practically without restraint. To that decision we shall steadily adhere. Its conclusion we do not desire to change; and its doctrine, which we then approved, seems to us still entirely correct and sound. That doctrine was that where there was any evidence of the offense charged, or the facts admitted of an inference of guilt, we should follow the conclusion of the commissioners, in view of their peculiar responsibilities, and their larger opportunities of arriving accurately at the truth. Upon the facts in that case, an inference of guilt, of a breach of discipline, and conscious and voluntary violation of the rules, was not only possible, but entirely natural and just. The proof showed that the officer was so badly intoxicated, so utterly under the influence of liquor, as to throw grave doubt upon his statement that his condition was due to the single drink of brandy and peppermint given him by a third person, and to indicate that the sickness of which he then complained was a pretense to hide an existing intoxication. Conscious of the lameness of that explanation, the relator, in that case, claimed that he had previously taken two doses of bromide of potassium and ammonia; but evidence was given showing that the consequent medicinal effect would not explain, or help to explain, the condition of gross and palpable intoxication which existed. On such a state of facts, the excuse of sickness, and of brandy taken as a medicine,-always suspicious and doubtful, unless under the clearest and strongest proof,-became little more than a pretense. The inference of guilt was at least a possible one, and we declined to interfere with it. And so, in this case, if a similar inference is at all possible,-if a reasonable man can reasonably infer a conscious breach of discipline or violation of rule from any or all the facts,-then we must hold the conviction to have been justified; but, if such an inference is not possible,-if there is no shadow of justification for it,-the case presents a pure question of law, a judgment rendered without any evidence to support it, which always requires at our hands a reversal.

Let us recur, then, to the facts. An officer who had served on the force for fifteen years, with a record and reputation every way excellent, who during that long period had never once drank intoxicating liquor, and whose truthfulness his commanding officer does not hesitate to affirm, is engaged for five days in a struggle with strikers who are striving, often with violence, to prevent the running of the street-cars. On the morning of the fifth day, through the severe cold of the winter, and without opportunity for breakfast, he is sent to his difficult and perilous work. Between 3 and 4 o'clock in the afternoon he becomes faint and ill. Exhaustion and cold, and lack of customary food, produce their natural result. He complains of illness to his sergeant. The latter, who has seen and watched him, feels no doubt of the fact, and takes him off the cars, and advises him to report sick. That meant an abandonment of the relator's duty in an hour of great peril. He declines to do so. He determines to continue on duty, and stand up to his work, in spite of weakness and suffering. At 4:20 in the afternoon he is perfectly sober, but soon after he takes one drink of brandy and peppermint, and it overcomes him. At 5:30 he appears to be, and is, somewhat under the influence of liquor, and is taken to the station-house. At 8 o'clock, when examined by the surgeon, he is not intoxicated. Summing it all up, it come to this: An officer on duty, when the service is necessary and perilous, takes brandy and peppermint, in a single instance, as a medicine to palliate suffering, and enable him to continue in the performance of his duty. Unfortunately, it produces a temporary intoxication, and fails as a remedy. Is that intoxication a breach of discipline, and a...