People ex rel. Kopp v. French

• Citation: 102 N.Y. 583,7 N.E. 913
• Parties: PEOPLE ex rel. KOPP v. FRENCH and others, Police Com'rs, etc.
• Decision Date: 22 June 1886
• Court: New York Court of Appeals

102 N.Y. 583

7 N.E. 913

PEOPLE ex rel. KOPP

v.FRENCH and others, Police Com'rs, etc.

Court of Appeals of New York.

June 22, 1886.

Appeal from an order general term supreme court, First department, affirming order special term affirming proceedings of the police commissioners.

John E. Burke, for the People, etc.

D. J. Dean, for respondents, Stephen B. French and others, Police com'rs, etc.

EARL, J.

Section 268 of the New York consolidation act (chapter 410 of the Laws of 1882) provides that no person shall ever be appointed to membership in the police force, or permitted to hold membership therein, or be appointed a patrolman, ‘who shall have been convicted of any crime.’ Robert Kopp, the relator, was on the twelfth of April, 1880, arrested for public intoxication in the city of New York, and taken before a police justice, and there charged with such intoxication, and convicted thereof, and fined five dollars, which fine he paid. Thereafter, in July, 1883, he applied to the board of police commissioners to be appointed a patrolman of the police force in the city of New York, and, in answer to questions put to him, stated that he had never been arrested for or convicted of any crime; and he was thereupon appointed patrolman. Subsequently, in October, 1885, it having come to the knowledge of the police commissioners that he had been convicted of the alleged crime, they passed the following resolution:

‘Resolved, that Patrolman Robert Kopp, 22 precinct, be directed to appear before this board on the thirtieth inst., at 12 M., and that the attendance of Knox McAfee, clerk 2d district police court be requested.’

In pursuance of that resolution Kopp was requested to appear before the board on the thirtieth of October, and he appeared there with his counsel, and his counsel, at the opening of the proceedings, stated as follows:

‘If your honors please, I appear for the defendant, and we have to say this: that, although we admit there that the officer had been arrested and fined in a police court, we now contend that there has never been a conviction of any crime.’

It thus appears that the relator was informed of the charge against him, and understood perfectly the purpose for which he had been summoned to appear. It was clearly shown, by the examination of the relator and other evidence, that he was arrested and duly convicted of being intoxicated in a public place, and that he was fined five dollars, and paid the fine. Thereupon the board resolved ‘that the name of Robert Kopp be stricken from the roll of the police department and force, and that the superintendent be directed to issue the necessary order for the return of his shield and manual, and to not allow him to perform any further duty as patrolman.’ It is now claimed that the action of the board was illegal for three reasons.

First. It is said that they had no jurisdiction to try the relator, and discharge him from the police force, without written charges, as required by section 250 of chapter 410 of the Laws of 1882, as amended by chapter 180 of the Laws of [102 N.Y. 586]1884, which provides that no member of the police ‘shall be fined, reprimanded, removed, suspended, or dismissed from the police force until written charges shall have been made or preferred against him.’ This is not, we think, such a case as is contemplated by that section. Kopp was not legally a member of the police force. He was ineligible. The police commissioners had no right, under the statute, to appoint him; and when it came to their knowledge that he had been convicted of a crime, and was therefore ineligible to the office, they had the right summarily to vacate his appointment, discharge him from the police force, and refuse longer to recognize him as a member thereof. This was not a case in which the commissioners were authorized or required to try or discipline Kopp for any offense committed by him as a member of the force, but it was simply an investigation to ascertain whether he was legally a member of the force, and that was an investigation to be conducted by them in their own way. If they should thus wrongfully dismiss a police officer, he would...