People ex rel. Goodwin v. Martin

VAN BRUNT, P. J. I cannot concur with Mr. Justice FOLLETT in the conclusion arrived at by him that the statute of limitations has run against the right of the relator to review the action of the police board in refusing to reconsider their action removing him upon his alleged resignation. It was held upon a previous certiorari taken in time, according to the calculation of time by Mr. Justice FOLLETT, that the question as to whether the resignation had been obtained by duress, and had been altered without the consent of the relator, could not be considered upon a certiorari taken to review the act of the police commissioners in removing the relator upon such resignation, for the reason that only the proceedings before the police commissioners could be brought up by such writ, and the question as to the validity of the resignation could not be tried, and evidence upon the question could not be considered. From that time on the relator has been endeavoring to have the wrong which was done him by his removal righted; and, in every tribunal before which the question as to the validity of this resignation has been brought, it has been found that such resignation was obtained by duress, and fraudulently altered, and was of no effect,—except by the board of police commissioners; and they have sought to justify the wrong which they did in acting upon this resignation, obtained by duress and fraudulently altered, upon the ground that, even if they had not acted upon this so-called resig [1109] nation, they would have removed the relator because of dereliction of duty. Upon this latter charge the relator has never been tried; and it is no defense, when it is established beyond question that the resignation of the relator was obtained by duress, and fraudulently altered, •after he had been prevented from stating upon the resignation the facts in reference thereto, for the respondents to say that if he had ■.not resigned they would have removed him anyhow. The evidence in this case shows that this resignation was obtained from this relator by threats, and, as already stated, before he finished its signature it was taken away from him and completed without his consent; and this is the paper by force of which he has lost his position on the force. It does not seem to require •argument to show that action upon the part of the police department based upon so fragile a foundation as this can hardly withstand scrutiny. And it is a rather peculiar feature that in the form of resignations which are to be signed by members of the police department when they desire to retire from the force there is printed an acknowledgment that the act is voluntary, and has not been caused by any threat of punishment or act of coercion from a superior officer or any other person connected with the police department. It would seem from this that there is a liability that such coercion will be used, and resignations procured by threats of punishment, and that in order to anticipate cases of this description the provision was printed in the form of resignation. What influence such a declaration in a printed form could possibly have it is difficult to imagine, for if a person was coerced into signing his resignation he would sign a resignation, necessarily, in the form prescribed by the department. We might, therefore, consider that we approach a case of this kind with the admission that such a resignation is liable to be the result of coercion upon the part of superior officers. But it is urged that, if the relator is reinstated, he gets 3Vs years’ pay, and has not been doing any work. Is that any consideration which can influence this court? If such a result follows, is it not because of the persistent determination upon the part of these commissioners not to do justice to this man, but to deprive him of his office by means of a false paper, and refusing to try him upon any charges over which they had jurisdiction, and upon which they so glibly claimed that he would have been removed anyhow? If it was so certain that he could have been removed upon those charges, and that they could have been established, why did they not do so, instead of insisting upon this fraudulent resignation, obtained by coercion and threats? It has not been thought necessary to discuss the evidence establishing the facts in connection with this resignation, because that has been done repeatedly already; and we have only considered briefly the moral considerations which have been urged in support of the immoral act of removing this man upon this false resignation, and the question of law that the statute has run against him, and prohibits him from reviewing the act of the commissioners. As already .stated, there was no way in which he could review the acceptance [1110] of the resignation except by reviewing their refusal to reconsider their action when he presented to them the proof which ought to have satisfied any reasonable man that such resignation was not the free act of the relator, had never been completed and delivered by him, and was altered after it came into the possession of his superior officer. I think the relator should be reinstated, and that he should have costs of this proceeding. 0’BB.IElSr, J., concurs.