People Ex Rel. Kasschau v. Board of Police Commissioners

O’Brien, J. The relator was removed by the defendants from the police force upon a charge of neglect of duty, in that he was absent from special roll call at seven o’clock in the forenoon of December 22d, 1895, and failed to report until eleven of that day, when he reported sick by a messenger. This absence of four hours was, so far as appears, the sole cause for his discharge. If there is anything in the record *44 that can be called testimony, the fact of absence from roll call was established, and it is just as clear that the reason for his absence was sickness. It may be that the commissioners were not absolutely bound to believe his statement; and if the trial was regular, and there were no other questions in the. case,‘we would hesitate before interfering with the result in the court below. But, in the return to the writ of certiorari, the commissioners state affirmatively that none of the witnesses called to prove the charge were sworn; and, when we look into the record, it is found that what took place before the acting commissioner bears little, if any, resemblance to a judicial proceeding. The relator was not subject to removal except for some legal cause, to be ascertained and adjudged as matter .of fact upon a hearing. This contemplates a judicial investigation in which there must, at least, be some legal responsibility for perjury, or some protection to the accused against falsehood. The issue to be determined was one of fact. The proceeding was judicial in character, and, hence, the tribunal before which the investigation was had could not dispense with the usual form of procedure by acting upon statements not given under the responsibility of an oath. When the court proceeded to judgment, without the observance of such an essential prerequisite to every judicial inquiry, the determination was not judicial in character, or such as the statute contemplates. While some latitude is allowed with respect to the rules of evidence, yet to remove a party from a public office upon a charge involving a question of fact without even swearing the witnesses is to abandon the fundamental form of judicial action. A determination thus made is not the result of a trial or a hearing in any proper sense, and hence the relator was removed from office without such a trial or hearing as the law contemplates. The statute confers power upon the defendants to formulate rules for the government of their proceedings, and one of the rules enacted under this power provides that the testimony upon such a hearing must be on oath except in trivial cases. It would be difficult to show that they have power in *45 any case when acting in a judicial character to enact a rule dispensing with an oath to witnesses, since such a rule would be repugnant to the very nature of a trial or hearing. But however that may be, it is safe to assert that a proceeding which results in the removal of a person from office cannot well be called a trivial case. If the charge was trivial the punishment was not. The judgment was that the relator should be removed from the force and this was" the highest penalty that the defendants had the power to inflict. So that if this was á trivial case then all such cases, resulting in the same determination, must be trivial whatever may be the nature of the charge. When a party is protected in the enjoyment of a public office or employment from removal except for cause, to be ascertained and adjudged upon a hearing of a judicial nature, and it appears that he has been removed without any proof of the necessary facts upon oath, the determination, if not absolutely without jurisdiction, is cleai'ly erroneous as matter of law. It is no answer to this objection to say that the relator did not require the witnesses to be sworn or that he failed to take any exception to the proceeding. The burden of making out the case was upon the prosecution. The accused may remain silent, and the omission of the relator in this case to interfere with the duties of the commissioners cannot cure the defect referred to. The order of the Appellate Division and the determination of the commissioners should be reversed, with costs in all courts. All concur, except Gbay, J., who dissents. Order reversed.