People ex rel. Shannon v. Magee

Smith, J.:

At the threshold of. the argument the jurisdiction of the police commissioner is challenged by reason of his prejudice. The relator sought upon the trial to show that the police commissioner had made threats in effect that he would get rid of this relator even though compelled by mandam.us to reinstate him after his former dismissal. Upon objection this evidence was excluded by the police .commissioner, to which ruling exception was taken. This exception we think is without merit. By the statute the police commissioner was the only tribunal authorized to try charges against the relator. Whatever may be his prejudice, therefore, his jurisdiction is undoubted, for otherwise the relator could not be tried or removed, however flagrant his offenses. If this proposition need authority, it is abundant. (See People ex rel. Deal v. Williams, 51 App. Div. 102 ; People ex rel. Burby v. Common Council, 85 Hun, 602 ; Matter of Ryers, 72 N. Y. 1 .) Nor has this court held a contrary doctrine. Whatever rule of law may be gleaned from the opinions of the learned justices who wrote in the case of People ex rel. Miller v. Elmendorf ( 51 App. Div. 173 ), two of the justices dissented and the writer concurred in the result only upon the ground that the determination was against the weight of evidence.

It is urged, however, that even though the prejudice of the police commissioner, did not disqualify him, nevertheless it was a fact . competent for consideration by the appellate tribunal in the review *197 of his determination. With this contention we cannot agree. It would be unseemly in the administration of the municipal affairs of a corporation if an officer authorized to try offenses were bound to hear and report evidence as to his. own bias which he is precluded even from disputing. If in this system of law by which the police commissioner is given authority to try such cases a prejudiced judge is sometimes found, the misfortune is one incident to the system. Our review of the determination of this commissioner must be based purely upon the evidence upon which he acted, and if there be in such evidence a reasonable justification for his conclusion, we are bound to recognize it as just and final.

Upon the merits of this controversy we find substantially three charges made against the relator: First, that he did not properly make up the beds of the policemen who slept at the station ; secondly, that in wakening certain policemen, as was his duty at seven o’clock in the' morning, he made unnecessary noise to the disturbance of the others who were sleeping; thirdly, that he was uncleanly and untidy and allowed dirt and dust to accumulate in the station house, and especially that in washing the spittoons in a certain sink in the cell room of the station house he left refuse which caused an unwholesome and disagreeable odor. Certain of the patrolmen gave evidence in support of the charges, while others gave evidence in behalf of the relator in denial thereof. The probability of the charges is strongly questioned from the fact that these very patrolmen who make these complaints constantly slept at the station house when they were not required to sleep there, and ate their lunches, read papers and played cards within ten feet of this sink which they claim was made foul by the uncleanly habits of this janitor. Without reviewing in detail the evidence adduced, there appear two facts which to us have controlling influence in reviewing this determination. This relator was under the direct charge of the chief of police, whose duty it was to give him directions and orders. The chief of police swears upon the witness stand in full vindication of his faithful discharge of his duty, and, more than that, he swears that never at any time was there any complaint made to him by any of the patrolmen who were sworn for the prosecution.

But, again, not only was no complaint made to the chief of police, who had charge of this janitor, but not one word of remonstrance was *198 ever made to the janitor himself during the entire period in which this neglect of duty is claimed to have existed. If this- janitor had habitually neglected properly to make the beds of the prosecuting patrolmen ; if habitually in wakening patrolmen under the direction of the chief he had unnecessarily made noise to the disturbance of those who were sleeping; if he had allowed the station house to become uncleanly and had so cleansed the cuspidors as to leave -an unwholesome place where these patrolmen were accustomed to eat their lunches, to read .'and to play cards, it is most unnatural that at least one of them should not have remonstrated with him for at least one of these derelictions. There are one or two • matters to which his attention was called by the patrolmen which are not made a cause of complaint. In those matters he at once made correction. We are of opinion that offenses too trifling for a single remonstrance from patrolmen to this janitor, who was with them daily, are too trifling to call for his dismissal.

' All concurred ; Kellogg, J., in result.

. Determination of the police commissioner reversed, with fifty dollars costs and disbursements, and reinstatement ordered.