People Ex Rel. Kent v. Board of Fire Commissioners

Andrews, J. The relator was duly charged with having been under the influence of liquor while engaged in the performance of official duty at the Star Theatre to such an extent as to render him unable to perform the duty for which he was detailed. The charge was publicly examined by the commissioners, upon notice to the relator, and in his presence. The testimony tended to sustain it. The relator admitted that he drank a glass of liquor before going to the theatre, but claimed that he did it because he was unwell. There was some conflict as to the extent of the intoxication. It is not claimed that illegal evidence was admitted, or that any rule of law was violated by the commissioners in the course of the proceedings. The proceedings, trial and judgment were in all respects regular, and the commissioners in dismissing the relator, kept within their jurisdiction. The intoxication of a policeman while on duty, to an extent sufficient to interfere with its performance, is a violation of the rules of the department, and the statute makes the violation by a member of the force, of such rules, or neglect of duty, or conduct injurious to the public welfare, or any conduct unbecoming an officer, punishable by the board, by reprimand, forfeiture of pay for a period not exceeding ten days, or dismissal from the force. There was no question either of jurisdiction, procedure or evidence upon which the General Term could interfere with the decision of the commissioner, it, however, modified the sentence by substituting in place of dismissal from the force (the punishment imposed by the commissioners), suspension from duty without pay for the period of six months. The only question is whether the General Term had power to review the' discretion of the commissioners in respect to the punishment, and impose a milder punishment upon its view of the circumstances and gravity of the offense. It is clear that no power was vested in the General Term to review the discretion of the commissioners, unless given by section 2141 of *85 ' the Code of Civil Procedure. It was originally held in this State that on a common-law certiorari to review the judicial action of boards, commissioners or inferior officers, the court was limited to the question of jurisdiction. The scope of the proceeding was subsequently enlarged, and it came to be held that the court would look into the proceedings to see whether any rule of law had been violated, or whether there was an absence of evidence to support the adjudication. {People v. Board of Police, 39 ¡N. T. 506; People v. Same, 72 id. 416; People v. Boa/rd of Fire Com’rs, 82 id. 358.) But questions of fact arising on conflicting evidence, or matters of judgment or discretion, were held not to be reviewable. {People v. Board of Police, 69 ÍT. T. 408.) This was the state of the law when section 2141 of the Code was enacted. It is contained in the article relating to the writ of certiora/ri, and is as follows: “ The court on the hearing may make a final order, annulling or confirming, wholly or partly, or modifying the determination reviewed, as to any or all of the parties,” This section considered alone would justify the action of the General Term and subject the adjudication of inferior jurisdictions to the supervisory power of the court, whether resting in discretion or depending upon legal principles. If this was intended, the section greatly enlarges the scope of the writ, and vests in the court a jurisdiction which it never before possessed. But reading section 2141 in connection with section 2140, which defines the questions which may be determined by the conrt, it seems quite clear that section 2141 is an auxiliary section, enacted merely to complete and supplement the jurisdiction conferred by the previous section, and to remove a doubt which might be entertained in view of the prior decisions as to the power of the court on certiorari, to correct an erroneous adjudication, instead of reversing it absolutely. Beading the two sections together the result is that section 2140 regulates the jurisdiction of the court in respect to the questions to be reviewed, and section 2141, the mode in which its determination may be declared and its ■judgment made effectual. The latter section was not we think *86 intended to confer jurisdiction over subjects other than those embraced in section 2140, or to change the settled policy of the law that the determinations of inferior jurisdictions in matters confided to their discretion are not reviewable on certiorari. The order of the General Term should therefore be reversed, and that of the commissioners confirmed. All concur. Ordered accordingly.