
    THE PEOPLE on rel. COOK a. THE BOARD OF POLICE.
    
      Supreme Court, First District; Special Term, Again, General Term,
    
    
      March, 1863.
    
      September, 1863.
    Common-law Cebtiobabi.—Fobm and Place oe Betuen:— Pleading undee Penal Statute.—Negativing Exception. —Effect of Bepeal of Law.
    The return to a common-law certiorari does not properly embrace the evidence; and though this be in fact returned, the court will not re-examine the merits.
    To justify a conviction on a quasi criminal charge, even the possibility that the accused was within an exception contained in the body of the rule or law under which the conviction is had, must be negatived.
    It is otherwise if the exception is contained, not in the body of the rule or law, but in a separate section.
    The repeal of a law imposing a penalty determines a prosecution for its violation.
    A common-law certiorari must be made returnable at general term.
    I. Ma/rch, 1863.—Common-law certiorari.
    
      The writ was obtained by Stephen t. Cook, the relator, against the Board of Police of the Metropolitan Police District. The facts are fully stated in the opinion. The writ was returnable at special term.
    
      Wm. Hemry Arnoux, for the relator.
    
      Aa/ron J. Vanderpoel, for the respondent.
   Peckham, J.

This is a common-law certiorari to review the judgment of the Board of Police, deducting, by fine, the pay of the relator as a member of the police force from the 26th day of October, 1861, to the 8th day of January, 1863. It appears, by the return to the certiorari, that, on the 19th day of January, 1863, the then superintendent of police, John A. Kennedy, preferred to the Board charges against said Cook of “ neglect of duty,” and specified, as the ground thereof, that said a Cook was absent from duty, and from the station-house of the 9th precinct, from October 26th, 1861, to the 8th day of January, 1863.”

It appeared, also, by the return, that the relator had been removed from the police force by the judgment of the Board in the fall of 1861, and I think just prior to the. alleged absence; that the judgment of removal continued in force till just before the preferring of the present charge, when the order of removal was reversed by this court, and Cook restored to his pi;ior position in the force.

The substance of this charge then is, that the relator has been guilty of dereliction of duty in not serving as a member of the force while and after the Board had turned him out; and of this he is actually convicted under charges, and his pay deducted while so absent,—absent by express order of the Board, not by permission or leave, not by his election or volition, but by the express order and direction of the Board.

Some question was made on the trial of this charge, whether the relator actually reported himself for duty after his removal. In my judgment, a totally immaterial question, as the relator had been ordered away,—actually removed from office, in fact, —though illegally, as afterwards adjudged; still, on the positive evidence, it perhaps should be held that he did, in fact, not report himself, though the officer to whom he claimed to have reported did not, in fact, remember whether he did or not. The decision of the Board on that point would be conclusive. But it is clearly proved, undenied and undisputed, that he applied to the Board, in person, and by several of his friends, repeatedly, to be reinstated, prior to taking steps to set aside the illegal order of the Board. His application was refused. It also appeared that the relator had been in no regular business since October, 1861, and had been ready and anxious to resume Ids' position and do his duty in the department “ up to the time of his restoration.”

The Board seem to have concluded that he did not report for duty, though in all other respects the facts are undisputed.

This, in my judgment, is an entirely erroneous proceeding on the part of the Board. Under a claim and pretence of a dereliction of duty, charges are gravely preferred against the relator for not doing what the Board had solemnly adjudged he should not do; for not acting as, or discharging the duties of, a member of the police force. Charges,” within the meaning and spirit of this act, imply a violation or neglect of duty, for which some punishment may be imposed, as was done in this case.

But to impose a fine for not doing what the Board had ordered the relator not to do,—not to act as a member of the force,—shocks one’s sense of justice.

It may well be that the relator is not entitled to his full pay while so removed. He may have been temporarily in some business,—or might have been,—whereby some deduction should be made. But that question should certainly have been left to be settled in a proper actipn in the courts, if the Board and the relator did not agree.

The forms of criminal proceedings should never have been resorted to for any such purpose, though they may be entirely effectual.

A return to a common-law certiorari does not properly embrace the evidence; and though it be in fact returned, as in this case, the court should not re-examine the merits. The Board seem to have had jurisdiction of the relator" and of the subject-matter. The well-settled practice of this court should not be violated to afford relief from the hardships of a particular case. There can be no relief, therefore, on the merits. But, on examining the return, I find that at the time this fine was imposed the law had been altered. The charge, as made, shows no violation of any regulation or law. The 38th rule of the Board, when the charge was made, provided that absence, with or without leave, except in a certain case, forfeited pay. But it nowhere appears, either in the complaint or the conviction, that this absence was not under that excepted case.

n. September, 1863.—Appeal from the above judgment.

From the decision of Mr. Justice Peckham, the Board of Police appealed to the general term.

Aaron J. Yanderpoel, for the appellant,

cited 1 Monell's Pr., 265; 35 Barb., 444, 447; 20 How. Pr., 169.

Wm. Henry Arnoux, for the respondent.

This exception or qualification is contained in the body of the rule itself, and not in a separate section. Therefore, it must be negatived in the complaint. This rule is perfectly well settled. The conviction is confined in terms to the charge, and therefore adjudged him guilty of no offence. This rule, after the trial had commenced, and before judgment pronounced, was altered.

The regulation, as established and in force then, allowed a fine to be imposed only when the person charged was absent without leave. Here there is no charge that he was absent without leave, nor was he convicted of any such charge.

There was then no law when the charge was made, or when the judgment was pronounced, to uphold it. (See Hartung a. People, 22 N. Y., 95, and cases there cited.) Though it is, perhaps, unnecessary to invoke the aid of the rule discussed in that case, as I think the complaint and conviction equally defective under either rule, so that it is unnecessary to discuss whether the old rule was repealed as to this case.

Proceedings reversed.

The Court (Sutherland, P. J., Ingraham and Leonard, JJ.)

announced that it was desirable to have uniformity in the

matter, and that thereafter common-law certioraris must be made returnable at the Supreme Court, general term; and thereupon amended the original writ, and directed the case to stand over to the next general term.  