People Ex Rel. Clapp v. Board of Police of the Police Department

Andrews, J. The relator was removed by the board of police from the office of patrolman, after trial and conviction, by the board upon the charge of “ conduct unbecoming an officer.” This is one of the causes specified in the fifty-fifth section of the act, chapter 335 of the Laws of 1873, for which members of the police force may be removed. The specifications annexed to and explanatory of the charge alleged in substance that the relator acted as patrolman without authority of law, in that when he was appointed patrolman in 1873 by the then board of police he was more than thirty years of age, and was for that reason ineligible, and also that he had previously been a patrolman and had resigned, and that his reappointment was not made in accordance with law. The specifications were based on the statute, chapter 755 of the Laws of 1873, which provides that no person shall be appointed patrolman who shall be at the time of his appointment over thirty years of age, and that any person who shall have been a member of the force and have resigned or been dismissed therefrom shall not be reappointed except by the concurrent vote of all the commissioners composing the board, to be taken by yeas and nays and recorded in the minutes. The evidence on the trial of the relator was confined to proof of the allegations in the specifications. It appeared by the evidence that he was reappointed patrolman in 1873 by the board of police, and had acted as patrolman from that time until the change in question was made in 1875 ; that he was over thirty years of age when he was reappointed, and that *417 prior to 1873 he had been patrolman and had resigned, and that the yeas and nays were not taken on his reappointment, but it was made by resolution of the commissioners passed in the usual way. Upon this evidence the board found the relator guilty of the charge of conduct unbecoming an officer, and a formal record was made up reciting the charge, trial and conviction, and adjudging that “ for the cause aforesaid ” he is removed from the police force. It is obvious that the only matter tried was the relator’s title to the office of patrolman. The evidence given had no bearing upon any question except the validity of his appointment in 1873. It had no relevancy to the charge of conduct unbecoming an officer, which assumes the official character and status of the person against whom it is made, and that by his misconduct while an officer he has subjected himself to discipline. It is absurd to hold that the exercise of official functions by one who is in office, by color of appointment of a, body having the appointing power, constitutes conduct unbecoming an officer. There was, therefore, an entire absence of evidence to support the conviction of the relator, and it is now settled that the court, on a common-law certiorari to review the judicial action of boards, commissioners or inferior officers, is not confined to the mere question of jurisdiction of the person and subject-matter, but will look into the proceedings, and if the adjudication made is unsupported by any evidence it will be reversed. (People v. Board of Metropolitan Police, 39 N. Y., 506; People ex rel. v. Smith, 45 id., 777.) We are of opinion that the conviction of the relator on the charge made is totally unauthorized by the proof, and should be set asidé. We do not interfere with the resolution of the board, passed after the conviction of the relator, directing that his name should be dropped from the roll, and that his pay should cease. The validity of this action depends upon the question of the relator’s title to the office of patrolman, and that is not before us. The judgment of the Supreme Court, and the conviction *418 and dismissal of the relator by the Board of Police Commissioners of the city of Hew York, should be reversed. All concur. Judgment accordingly.