People ex rel. Doody v. Bishop

Hatch, J. _ The relator was regularly appointed a doorman upon the police.force of the city of Buffalo, October 21, 1889,■ and had continued in such office at various stations of the police force until the 25th day of August, 1894, when he was assigned to duty at police headquarters, where he performed duties, in part, at least, in all respects similar to those he had theretofore performed. While performing duty at headquarters he was assigned by one Illig, the chief operator in charge of the ‘‘ police telegraph and patrol signal system,” to duty in that department. This assignment was made upon request of one Tibbits, an operator therein, and seems to have been made for the purpose of instructing the relator in the management and use of the telegraph instruments and switchboard used in'the departmént. This work was more difficult of performance, and there was more of it than attached to the duties of doorman at a station house, and' xrelator was not proficient therein. While so employed he neglected, as the evidence tends to establish, to note certain calls from the various boxes of the system, and particularly neglected to notify the proper person of a patrol wagon call for the space of twelve, minutes, and then only when the call was repeated. Eor this dereliction of duty written charges were preferred by Illig to the board of police, -with precise specifications, charging the aforesaid derelictions of duty; a trial was had, and the board found the charges sustained by the evidence and dismissed the relator from the Buffalo city police department. The office to which ■ the' relator was appointed has been recognized in the various charters of the city of Buffalb for many years, and its duties have been specifically defined in the charter and rules adopted thereunder for some years, and has been continued under the last revised charter- of the: city. By section 187 of this charter the constitution of the police ' force is defined, and the status of the office of doorman is . therein determined. Section 194 authorizes the adoption of rules for the government and discipline of the force, prescribing their duties, providing for appointments and removals, -and [275] such rules are given the same force and effect as though they formed part of the enactment. Under this provision rules were adopted defining the duties of doorman, and assigning his rank in the department. Nothing in section 187 determines the status of those persons who are denominated in the rules as attached to the “ police telegraph and patrol signal system.” It is true that therein it is stated that “ the term 1 doorman ’ in this act covers all members of the force who were appointed under the name of operators.” But this provision does not determine that the persons employed as operators in the telegraph and patrol signal system fall under the designation of doorman. The clause evidently refers to some persons who had been appointed as operators at some time prior thereto, and the office of doorman contemplates that they shall be operators. But the section does not disclose that the persons connected with the patrol and signal system were appointed as operator’s or doormen, nor is. there any provision for their appointment, except the general power contained in tire section to appoint, ■“ in addition to the police force,” clerks and employees necessary for the proper working and management of the department, and these persons do not seem to have a defined status upon the police force, but are in addition thereto, and find no place in the defined rank of the force. The rules defining the duties of a doorman do not embrace the duties assigned to the employees of the patrol and signal system; those duties are made the subject of a distinct and separate rule under the title of “ the police telegraph and .patrol signal system.” That the board of police recognized this fact is disclosed by the examination of Illig by Commissioner Bupp : • “ Q. Is the work there harder than being a doorman in a. station house ? A. Yes, sir, more work attached to it. Q. Any ordinary operator should learn that duty in a week? A. Yes, sir; he may make a mistake once in a while, but not every day. Q. You would consider a man that could not learn that business in a week, after he had been a doorman, was not a competent person to have in the department ? A. Yes, sir.” The charge is neglect of duty as a doorman, yet the- specifi [276] cati.ori is of neglect “ while on duty in the . patrol ¡signal, department.” ' The board of police appoint the members of the police force by virtue of the charter, and by the rules they are required to inform, the superintendent of police without! delay of their action, and he makes all assignments to duty. In the . ease before us it appears from the return that the relator was ' assigned to duty at headquarters by the superintendent, ¡and it does not appear that any farther assignment was made by him.The step which brought relator in contact with the department where his omission of duty occurred wag ordered by Illig, upon request of Tibbits. We are referred to- no' rule or authority which vested Illig with any authority over doormen, • or which authorized him to assign relator to duty at the switchboard in.the patrol system. There is no proof to establish that relator was guilty of any fault in the performance of his duty as doorman, either at headquarters or elsewhere. We are’ therefore, presented with a case where relator had a fixed statuses 'doorman of police, and performed his duties 'properly ; .without authority he was assigned to another department, other and different duties were imposed upon him, which he failed to perforin, and such failure is made the basis of charges to remove him from his office, wherein he was guilty of no dereliction of duty. We are of opinion that this may not be done The qualifications which made him a competent, doorman were, evidently, not sufficient to make him ,a competent ■ .operator of .the telegraph and patrol system. But to the latter position he was not appointed. It would be a strange system which- could remove a person from a lower grade of- . employment, which he was competent to perform, into a' higher, where more skill and a higher degree of intelligence were', required, and then make his failure or- dereliction of duty in the. higher grade, the basis’ upon which to remove him . from the .lower service. His failure to quickly learn the more .difficult duties of the other station cannot be made .the basis of removal from an. office, whose duties,, so far as appears-, he .properly performed. [277] Nor does the fact that relator attempted performance of the duty assigned, without objections, change the condition. He was placed there for instruction in the first instance, and may have been willing to be taught. The trouble seems to be that, either through lack of capacity, intention or stupidity, he did not learn fast enough. But there is no sufficient evidence to show that he intended at any time to relinquish his office of doorman, and neither the board nor the superintendent of police, by any act, prior to the trial, evidenced any intention that he should. We conclude, therefore, that no neglect of duty as doorman appears, and that neglect in another branch of employment to which he was not appointed, under the circumstances of this case, cannot be made the basis of removal from the position to which he was appointed. The order will, therefore, be that the proceedings be reversed and set aside, and that the board of police reinstate relator in his -office of doorman. Costs awarded to the relator. White, J., concurs.