People ex rel. Miller v. Board of Police Commissioners

Davis, P. J. In The People ex rel. agt. Smith, Grover, J., said : “ Whatever may have been the conflict of authority heretofore' upon the question whether, upon a common-law certiorari, the court can inquire into any thing beyond the jurisdiction over the parties and subject-matter, it must now be regarded as settled in this state that it is the duty of the court, in addition thereto, to examine the evidence and determine whether there was any competent proof of the facts necessary to authorize the adjudication, and whether, in making it, any rule of law affecting the rights of the parties has been violated ” (People ex rel. agt. Smith, 45 N. Y., 776, 777; People agt. The Board of Metropolitan Police, 39 N. Y., 506; The People agt. The Assessors of the City of Albany, 40 N. Y., 154). An examination of the published reports of the court of appeals since the 45 N. Y., fails to disclose that these cases have been reversed. There can be no doubt that the board of police commissioners had jurisdiction of the subject-matter and of the person of the relator. He was a member of the police of the city. A charge had been lodged against him on the 4th day of February, 1875, in due form, charging him with neglect of duty. This charge was accompanied with a specification stating the particular offense, which, if true, was just ground for removal On the fifth day of February, a formal notice of the charge [291] with a copy of the same and of the specifications, were served upon him personally, whereby he was notified and required to answer the charge in accordance with and in the manner required by the rules and regulations for the government of the police force; and that his trial upon said charge would take place at a meeting of the board to be held at the office, Ho. 300 Mulberry street, in the city of New York, on the 10th day of February, 1875, at one o’clock p. m„, and continued, as ordered by the board, until concluded. The relator admitted, in writing, due personal service of all these papers; and he also, afterwards, signed a separate paper, indorsed on said notice, charges and specifications in these words : “ I hereby admit the within charge as specified, and waive trial thereon.” ° On the eighth day of February following, he made a statement, addressed to the board, verified by his oath, and accompanied by the affidavits of four other persons, which substantially denied the charge and specification, and which, if true, ought to have secured his acquittal. On the tenth day of February, the board met for the trial of the relator at the time and place designated in the notice, and, at one o’clock of that day, the relator was called but failed to appear, and thereupon the board, as stated in their return, proceeded to hear, in the absence of said Miller (the relator) the proofs and allegations in support of said charges, to wit, the herein-before mentioned admission of said Miller of the truth of said charges. On the twelfth day of February, the relator presented his petition asking leave to withdraw his admission and for a trial of the charge; and at a meeting of the board on the 16th ■ of February the petition was denied, and the board proceeded to pronounce a'formal conviction and judgment of removal. It is clear that no other evidence was produced against the relator than his written admission of guilt, and the question is, whether that was sufficient evidence, on his failure to appear and answer at the trial, to [292] justify his conviction. I am at a loss to see why the admission was not evidence. His subsequent verified denial, and the affidavits accompanying the same were competent evidence of the truth of the facts stated in them. The commissioners were not bound to receive nor treat them as such. It was the relator’s duty to have appeared on the trial, which he had ample opportunity to do, and to produce his witnesses for examination and cross-examination in due form. It does not appear that, if he had appeared and asked for the examination of his witnesses, and for a complete trial, without regard to his admission, the board would not have allowed it. Even on such appearance, the admission would have been evidence against him proper to be considered, but we cannot judicially say that the board, notwithstanding the rigid rules they subsequently applied to his case, would not have allowed him then to withdraw or explain the admission, and to disprove the charge by the production of his witnesses. By not appearing he was in default, and sufficient evidence was given by his admission to convict him on suich default. The subsequent refusal to open the default and let him into a formal trial upon the withdrawal of the admission seems to have been severe and unnecessarily harsh, but it was an appeal to the conscience and discretion of the commissioners (not to ours), and if their denial seems to the court unreasonable, that is no legal ground for its reviewal on certiorari. It was a matter of practice in the order and detail of the proceedings, and not reviewable by us. The subsequent efforts to get a re-hearing, and the refusals to grant the same, though not to be commended, are not in our province to review. The questions which we can review are the jurisdiction of person and subject-matter, and whether at the trial competent evidence was given tending to prove the charges, and sufficient to justify a conviction; and unless we can hold that a written admission of the truth of the charge and specification signed by the party accused is no evidence, or that it has become no evidence because a contra [293] dictory statement and separate affidavits have been presented by the accused previous to the day of trial, but which he does not appear to maintain on the trial, we are forced to the conclusion that it is our duty on this writ to affirm the proceedings. It is not to be inferred that I intend to justify the manner in which the commissioners dealt with the relator, or even that I dissent very much from the views which my brother Lawrence has expressed concerning the proceedings. What I mean to say may be better expressed in the language of Woodruff, J., in The People agt. The Board of Police (39 N. Y., at page 517), that to hold that “matters of mere detail in the order or mode of proceeding, not violating any rule of law to the prejudice of the party, and matters which are clearly submitted to the judgment or discretion of the inferior tribunal, where the evidence presents a case for its exercise, can be so reviewed” (by certiorari), would be in conflict with all the previous adjudications, and produce great inconvenience and embarrassment. I think the judgment of the board of commissioners must be affirmed, but, under the circumstances, without costs. Daniels, J., concurred.