text:
    The People ex rel. Martin Vincent, App’lt, v. Common Council of the City of Hudson et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    1. Municipal corporation—Police—Removal.
    The common council of the city of Hudson may take and delegate the taking of testimony, upon the trial of charges against a policeman, to a committee of its own body.
    2. Same—Notice.
    Where the common council, without giving him an opportunity to be heard, adopts the report of such committee ahd removes him, such removal is illegal.
    Certiorari to review the proceedings of the common council, and its decision and determination thereon, dismissing relator from the police force of the city of Hudson.

      Duniz & Aldcrofti (Marie Duntz, of counsel), for app’lt; Collier, Collier & Browning (C. P. Collier, of counsel), for resp’ts.
   Herrick, J.

By § 4 of chapter 468 of the Laws of 1872, as 'amended by chapter 563 of the Laws of 1873, the common council of the city of Hudson is authorized to appoint the chief of police and policeman, not to exceed eight in number. By § 19 of said act, as so amended, it is provided that:

“The chief of police, and any of the policeman, may be removed by the common council on proof of charges preferred in writing of illegal, corrupt or improper conduct, neglect of duty, disobedience of orders, or neglect to comply with the rules and regulations prescribed or enacted by the common council for the government and discipline of such policemen of which he has notice. The common council may prescribe the time, place and manner of services of the chief of police, and of each of the policemen, and make such rules and regulations for the government and discipline of such policemen as it may deem proper and expedient for the good government of the city.”

Section 40 of the same act, as amended by chapter 379 of the Laws of 1876, provides as follows: “The common council may remove from office by a vote of a majority of the members thereof, any officer appointed by the common council. * * * But nothing herein contained shall authorize the removal of any chief of police or policeman now in office except in the manner, and for the causes mentioned in § 19 of this act, and no chief of police or policeman shall be removed until he shall, have had notice of the charges preferred against him and a reasonable opportunity afforded him after such notice of being heard in his defense by counsel or otherwise.”

The relator has been for a number of years a member of the police force of the city of Hudson. On the 19th day of March, 1893, a burglary was committed in the city of Hudson, and it was alleged that at such time the relator was absent from his post of duty without leave. What was know as the police committee of the common council of said city, hearing of said complaint against the relator, and having presented to it one or more affidavits in relation thereto, preferred charges against the relator of gross neglect of duty as a police officer, of disobedience of, and want of attention to, the orders and directions of the chief of police; specifications of such charges were attached thereto, which charges and specifications were served upon the relator. The relator appeared before the committee, and, through his counsel, made various objections to the jurisdiction and authority of the committee to investigate such charges; notwithstanding which, the investigation proceeded, and evidence. was taken. The committee made a report of their proceedings to the common council, upon the receipt of which the common council passed two resolutions,—one, “ that such report be received and placed on file, and the action of said committee set forth in. said report, to be fully indorsed and approved by the common council; ” and the other, “that the police committee be directed to proceed with the investigation of the charges against Chief Snyder and Officers Vincent and Shepard, and report the result of such investigation at a subsequent meeting of the common council, with such recommendations as the police committee shall deem advisable.” That thereafter, on the fifth day of April, the said police committee had a. hearing upon such charges, of which notice was duly given to the relator, who appeared thereat in person, and by counsel. That thereafter, on the 29th day of April, said police committee submitted their report to the common council, with the evidence that had been taken before them, and their findings and recommendations thereon, and wherein they found that the charges against the relator had been sustained, and recommended that he be dismissed from the police force; and thereupon, by vote of the common council, the report of the committee was approved and adopted, and, by a resolution of the common council, the relator was dismissed from the police force of the city of Hudson.

The relator did not appear before the common council, neither does it appear that he was notified of any hearing by said common council, or notified or requested to be present before them upon the hearing of such charges. Proceedings by boards of police commissioners, or by a common council, in the trials of policemen and other kindred officials, where the powers of such commissioners or boards are largely disciplinary, are not regulated by the same degree of formality that is required upon trials of criminal charges before ordinary tribunals of justice. People ex rel. Flanagan v. Board of Police Com'rs, 93 N. Y. 97. Errors and irregularities that would be fatal in ordinary courts of justice are overlooked in proceedings of this kind, so long as the court can see that the substantial rights of parties accused have not been violated, and that the requirements of the statute clothing such bodies with the power to try municipal servants have been substantially complied with. The common council of the city of Hudson had power to make rules and regulations for the government of the police force of the city, and had power to try offenders against such rules; they could take and delegate the taking of testimony, upon the trial of such charges, to a committee of their body. People ex rel. Flanagan v. Board of Police Com'rs, 93 N. Y. 97 ; People ex rel. McCarthy v. Board of Police Com'rs, 98 N. Y. 832. In that respect those proceedings were not irregular. The statute heretofore cited provides that: “A policeman shall not be removed until he has been notified of the charges preferred against him, and a reasonable opportunity afforded him after such notice, of being heard in his defense by counsel or otherwise”

He had notice of the hearing before the committee, and appear-. ed thereat, and. if the proceedings before such committee are to be regarded as the hearing or trial that the relator is entitled to under the statute, then it seems to me that one of the substantial rights that every person is entitled to has been infringed upon ; that is, he was tried by his accusers. It is a fundamental principle of law, as I understand it, that no man or body of men can be both accusers and judges; the committee preferred charges upon their own motion, and then proceeded to try them. I do not think, however, that these proceedings before the committee' were the trial,contemplated by the statute that contemplates a trial by the common council. As I have stated, it undoubtedly had the power to delegate to a committee the taking of testimony in the proceedings, which could be reported to the common council, and then the hearing or trial had thereon before the whole common council, or a quorum therfeof, as was done by the police commissioners in the case of People ex rel. Flanagan, above cited.

Assuming that the police committee in this case, notwithstanding they had made charges, could take evidence, and report the same to the common council, to be passed upon by them, still the statute I do not think has been complied with. The relator, it appears, became a member of the police force about the 1st of January, 1873, and the statute provides that no person then in office “shall be removed, except upon charges of misconduct, or until he has received notice of the charges against him, and a reasonable opportunity afforded him after such notice of being heard in his defense by counsel or otherwise.” Of course, that hearing must be before the body that is to try him. A hearing before a committee of the common council, consists of a portion of its members, is not the common council to try him, and is not a hearing before the common council. The report of the committee, with the evidence, so presented to the meeting held April 29th, was acted upon, and the relator dismissed at the same meeting. That was not giving him a reasonable opportunity to be heard.

The proceedings of the common council should therefore be reversed and set aside, with $50 costs and disbursements.

All concur.


source: Caselaw Access Project

author: Bartlett, J.

license: Public Domain

text:
    The Harlem Bridge, Morrisania and Fordham Railway Company, Resp’t, v. The Town Board of the Town of Westchester et al., App’lts.

      (Court of Appeals,

      Filed June 12, 1894)

    Appeal—Stipulation—Extra allowance.
    A stipulation for an order of discontinuance of an action to be without prejudice to a motion for an extra allowance may be properly made by the parties, the motion pursuant to it is regular, and the general term has power to review on the merits the order granting it.
    Appeal from order of the general term of the supreme court in the first judicial department, made January 12, 1894, which reversed orders of the special term granting motions by defendants for leave to renew motion for extra allowance on discontinuances of action and granting said allowances.
    The nature of the action and the facts, so far as material, are stated in the opinion.
    1 Alfred B. Ovuikshank, for app’lt; Henry L. Scheuerman, for resp’t.

       Reversing, 59 St. Rep. 108.

   Bartlett, J.

This is an action for an injunction to prevent the defendants from interfering-with the plaintiff from building and operating its street surface railroad, and to prevent defendant traction companies from building their own roads upon certain highways in Westchester, over which plaintiff claimed exclusive rights under its charter. After the action had been pending for some months a motion was' made to discontinue it, by plaintiff, which was granted by order • entered March 7th, 1893, the order reciting that.it appeared the plaintiff had complied with all terms “except to the extra allowance to be hereafter disposed of.” This had reference to a stipulation made the day before (March 6th, 1893), to the effect that the entry of the order of discontinuance should be without prejudice to the motion for an extra allowance, then pending, and that if the extra allowance was granted and not paid, defendants could move to vacate the order of discontinuance ex parte. On the 16th of May, 1893, Mr. Justice Patterson of New York, sitting at special term, granted to the town board of the town of Westchester, and certain other defendants, an extra allowance of §500. From this order the plaintiff appealed, and the general term refused to consider the appeal on the 'merits and reversed the order, for the alleged reason, as appears by the order, that the court had no power, after the. action had been discontinued, to entertain a motion for an extra allowance. The defendants interested appeal from this order. We think it was competent for the parties to enter into the stipulation they did for the conditional discontinuance of this action. This court has repeatedly held that parties may enter into any stipulation not unreasonable and not against good morals or sound public policv. Matter of N. Y., L. E. & W. R. R. Co., 98 N. Y. 453, and cases there cited. The motion for an extra allowance was therefore, regular, and the general term had full power to consider on the merits the appeal from the order made by the special term.

We are urged by the respondent to consider the question of the extra allowance on a ground not resting in the discretion of- the supreme court, viz,, was there any subject-matter involved in this action which was shown to have a value, upon which an allowance could be computed? We do not think this question,is properly before us on this appeal, as the only point presented for our consideration is whether the general term possessed the power to review the order of the special term on the merits.

For the reasons already stated, we are of opinion that the order appealed from should be reversed.

Order appealed from reversed, with costs, and case remitted to general term for its action upon the appeal from the special term.

All concur. Ordered accordingly.


author: Barl, J.

text:
    The People ex rel. Annie M. Hoffman, App’lt, v. The Board of Education of the City of New York et al., Resp’ts.

      (Court of Appeals,

      Filed June 12, 1894.)

    Boabd of education—Fines.
    The board of education of the city of New York has no power to impose a fine upon a teacher, either payable in money or by forfeiture of salary for a specified period, in the absence of any by-law, rule or regulation known or assented to by the teacher, providing for the imposition of such fine.
    Appeal from order of the general term of the supreme court in the first judicial department, made December 31, 1886, which confirmed the proceedings and final determination of the board of education of the city of New York imposing a fine upon the relator, which- proceedings were brought up for review by writ of certiorari.

    The relator, who was the principal of one of the public schools in the city of New York, was charged by the parent of one of the pupils with improper conduct during the examination of said pupil, and with having so-discriminated against her as to obtain an improper result of the examination and to prevent her promotion. The committee to whom the matter was referred reported adversely to the relator, and upon such report a new examination was ordered under the direction of the city superintendent of schools; the latter suggested to the relator that she should not be present during such examination. She was present, however, before it commenced and brought the pupil for whose benefit the. re-examination had been ordered from the back to the front row of seats and cautioned the class teacher to watch her and make sure she did not copy from the other pupils, as she had twice caught her doing on the prior examination. The city superintendent found that said pupil was not qualified to be promoted. The committee reported that the relator was guilty of discourtesy, and proposed that she should be fined fifteen days’ pay for dis: obeying the instructions of the city superintendent by being in the room prior to the examination and interfering with said pupil. This report was adopted by the board of education, the fine imposed being deducted from her salary.
    There was no by-law, rule or regulation of the board of education known or assented to by the relator tinder which á fine could be imposed upon her.

      Henry Schmitt, for app’lt; B. G. Beardslee, for resp’ts.

      Reversing 4 St. Rep. 747.

   Barl, J.

The relator was principal of one of the public schools in the city of New York, and she was fined by the board of education “ fifteen days’ pay for disobeying the instructions of the city superintendent; ” and she instituted this proceeding by certiorari to review and reverse the imposition of that fine. She claims that the board had no authority to impose the fine, and in this we think she is clearly right.

The imposition of a fine is a species of punishment, and before any body, tribunal or officer can impose it, authority therefor must be clearly found in some statute.

Sections 1022 and 1026 of the New York City ’Consolidation Act of 1882 provide that the board of education “ shall have full control of tire public schools and the public school system of the city, subject only to the general statutes of the state upon education ; ” and this is the sole provision of law invoked by the respondents as authority for the imposition of the fine. Under it the board of education may establish schools, regulate the course of instruction therein, and shape the entire educational system for the city. It may provide for. the discipline and government of the scholars in the schools. But could it impose pecuniary fines upon them for any misconduct or dereliction, and thus deprive them of their property? Could it imprison them or sit in solemn judgment upon them and order the infliction of corporeal punishment? If it could not do these things, much less could it discipline or punish teachers in these ways. The relator never in any way submitted herself to such a jurisdiction, and there is no general law which confers it. If the board could thus deprive her of fifteen days’ pay, where is the limit? Why could it not deprive her of one month’s pay or a "whole year’s salary already earned ? If it could compel .her to forfeit money already earned, why ould it not enforce a fine-against her other property? If the board has such a power, where are its limits and who is to define them ?

If the board had adopted by-laws for the regulation of the schools and the teachers therein, and the relator liad assented to them, then they might have become binding upon her as part of her contract with the board, and under such by-laws it might have had power of discipline and control over teachers which it could not otherwise have or possess. But here there was no by law, rule or regulation known or assented to by the relator under which any fine could be imposed upon her. The board of education can, under certain conditions mentioned in the laws, remove teachers, and by the exercise of that power it can protect the schools against the incompetency and the improper conduct ■of- teachers.

The board of education is a quasi municipal or governmental corporation, and no such corporation has power to impose fines or to pass ordinances authorizing the imposition of fines without the clear authority of some statute. In Dillon on Municipal Corporations, §§ 345 and 348, it is said: “A corporation, under a general power to make by-laws, cannot make a by-law ordering a forfeiture of property. To warrant the exercise of such an extraordinary authority by a local and limited jurisdiction, the-, rule is reasonably adopted that such authority must be expressly conferred by the legislature.”- “In this country, inasmuch as corporations derive all their power from charter or act of the legislature, the right to inflict a forfeiture must be plainly given, and cannot be derived from usage.” In Kirk v. Newell, 1 T. R., 124, the question was whether a corporation which possessed a general power to make by-laws could make a by-law creating a forfeiture, and Lord Mansfield held that no corporation possessed such an extraordinary power unless it was expressly given ; and Mr. Justice Duller also said that construing it a by-law creating a forfeiture, the act of parliament not having given the corporation power to make such a by-law, it was bad on that ground; and a^ similar doctrine was laid down in Hart v. Mayor, etc., 9 Wend. 571, 588, and Dunham v. Rochester, 5 Cow. 462, and in many other cases. This fine was in the nature of a forfeiture, if valid, as it compelled' the relator to forfeit a portion of her salary earned.

As this fine was imposed upon the relator without authority it could do her no harm, and could not stand in the way of the collection by her of her salary as a teacher, and, therefore, it may well be doubted whether she could properly institute this proceeding by certiorari to review and reverse the utterly void and harmless proceeding of the board of education. ' Dut as this proceeding was entertained in the court below, and no objection has been made to its propriety, we will assume that it was proper; and our conclusion is that the order of the general term and the proceeding of the board of education imposing the fine should be reversed and set aside, with costs to the relator in this court and the court below. ' ■

All concur, except Peokham and Gray, J. J., dissenting.

Ordered accordingly.