People Ex Rel. Clarke v. . Roosevelt

Haight, J. I adopt the rule sanctioned in the case of People ex rel. McAleer v. French (119 N. Y. 502) to the effect that “ In determining the guilt of a police officer, who *490 is on trial for charges preferred against him, the police commissioners cannot act upon their own knowledge. The charges must be tried upon evidence, and the guilt must be established by evidence produced before the commissioners upon the trial, -x- -x x p>a£ inflieting the punishment they may take into consideration the evidence, as well as their own knowledge of the police officer, and inflict such punishment, authorized by the rules and the statutes, as in their judgment the case, in view of all the circumstances, requires.” Has this rule been violated by the commissioners in the case under consideration ? The respondents in their return to the writ of certiorari state that at the termination of said trial “the proceedings and the relator’s record were duly considered by your respondents at a regular meeting of the hoard of police, held on the 9th day of August, 1895; and after due consideration thereof your respondents determined, after the exercise of their l?est judgment and discretion, that the relator was guilty as severally charged, and they thereupon passed resolutions * * * declaring ordering and adjudging that the several charges were true and dismissing the relator from the police force of the city of Hew York.” It thus is apparent that the adjudication of guilt and the imposition of punishment both took place at the same meeting and were accomplished by one resolution of the board. As we have seen, the board of police had the right to consider the relator’s record in determining the character of the punishment that should be imposed, but not in determining the question of his guilt. The board, therefore, had the right to have the relator’s record present at the meeting and to consider it in determining the punishment. Whether the commissioners did more is not clear from the return and in this respect it may be treated as ambiguous. To aid us in determining the true intent and meaning of the board in the return, to which we have alluded, we find that the commissioners have also returned all of the papers and proceedings had before the board, among which is the written decision of the commis *491 sioners with the resolution passed by them, adjudging the relator guilty of the charges and removing him from the police force. In this decision it appears that the judgment as to the relator’s guilt was based upon the proofs produced before them. I think this instrument, returned by the board as its final adjudication and determination in the case, makes clear the intent and meaning of the board in its return to which we have alluded, and that is that the guilt of the relator was determined upon the proofs produced before the board and that his record was only considered in determining the punishment. The order should be affirmed, with costs.