
    The People of the State of New York ex rel. John J. Maloney, Relator, v. Anthony C. Douglass and Others, Composing the Board of Police Commissioners of the City of Niagara Falls, New York, Respondents.
    Fourth Department,
    July 9, 1907.
    ' Municipal corporations — removal of chief of police, city of Niagara ; Falls — certiorari. ' .
    By virtue of- section 274.of the charter of the city of Niagara Fails the police commissioners of that city may summarily-remove the chief of police without i charges and without the trial and procedure'required "by. section 275 of the charter. Said sections are separate and provide different remedies for dealing with' the police force."
    As under section 274 of said charter the commissioners may summarily remove the chief of police, certiórari is hot the proper remedy to review their action..
    • Certiórari issued out of the Supreme Court and attested on the 1st day of April,. 1907, directed to Anthony C. Douglass and others, composing the board of police' do in missioners of the city of Niagara Falls, New York,, commanding them 'to certify and return to the office of the clerk of the county of Niagara all and singular their proceedings-had in relation to the removal- .of the relator from the ' office of chief of police of the said city of Niagara Falls.
    
      King & Leggett, for the relator.
    
      Franklin J. Mackenna, for the respondents.
   Williams, J.:

The writ should be dismissed, with fifty dollars, costs and disbursements. • .

The question involved is the right of the police commissioners to summarily remove the chief of police, under section 274 of the charter (Laws of 1904, chap. 300) without any charges or thprocedure, prescribed by section 275.

There seéms to have been some indecision at -first as to the power 'of summary removal, and t-lie commissioners prepared charges and undertook to proceed under section 275, but these proceedings were abandoned and discontinued, and the commissioners then proceeded to remove summarily under, section 274, and appoint a successor.

There is no doubt that abundant grounds for their action in fact existed. The only question is as to the procedure necessary to be. followed. If the chief was entitled to be tried upon charges under section 275, then his removal was unauthorized.

It is claimed by the commissioners that certiorari is not the proper remedy. If the power of summary removal under section 274 existed, that would be true ; but if the chief was entitled to a trial-under section 275, then' the proceeding would be of a judicial nature and subject to review on certiorari. So that we must in any event pass upon the effect.of these two sections of the charter. The mayor and two police commissioners constituted the board, and any two constituted a quorum. .Any two- might appoint a chief of police, who should hold office until removed for some cause or causes specified in the charter. These provisions are contained in sections 270, 271, 272 and 273 of the charter. Then, section 274 provides :

“ § 274. The board, by an affirmative vote of at least two commissioners, may at any time remove from office the chief of police or any policeman, or other appointee, when he shall be found to be-incompetent or negligent or guilty of misconduct or unable to perform-the duties of his office, or guilty of willfully violating any of the rules, regulations or orders of the board of police commissioners or any superior officer, and appoint in his place and stead some other person, as herein provided.”

And section 275 provides :

“ § 275. If a charge be made by any person against any member of the police force, that he is incompetent or has been guilty of neglect of duty, miscdnduct in his office, or of' conduct unbecoming a.police officer, the charge must be put in writing in the form required by the rules of the police department, and a copy thereof must be served upon the accused officer.' It is then the duty of the board to hear, try and determine the charge according to the rules of the police department. The accused officer shall have the right to be present at his trial, and to be heard in person and by counsel,' and give and furnish evidence in his defense. All trials shall be open to the public. Any commissioner shall have power to issue subpoenas, attested in his name, to compel the attendance of witnesses upon any proceeding authorized by the rules and-regulations of the police department, and any person duly served with a subpoena is bound to attend in obedience .to the command thereof, and. the commissioner shall, have .the same authority to enforce obedience, to the subpoena -and to punish for disobedience thereof as. is pos--. sessed by justices of .the peace in. like cases. If the accused officer' shall be found guilty of the charge made against him, the board of police commissioners may order his suspension from- pay for .some definite time,, or impose upon him a fine not exceeding fifty"dollars, or reduce his grade, or dismiss him from the police force, or subject him to any other discipline prescribed' in the rules of the police-department which is nofiinconsistent with ’the provisions of this act or with other laws- of the State. The decision- shall be in writing, and be immediately filed with the city clerk.”

.,' Under section 274 a removal from office is provided for by a vote of at least two commissioners, wfien the party is found to be incompetent, etc. Ho charges are provided for and no reference, made to ■ section 275. Under section 275 charges must be made, and when the party, is. found guilty by the commissioners lie may be suspended ..from pay for á definite time,, be fined not 'exceeding -fifty dollar's, or his grade may be reduced, or he may be dismissed from the -force, or be subjected to any other discipline prescribed by the rules of the’department not inconsistent with the laws of the State.- In the one case it is a removal from office for certain causes.. In the other,it is punishment for an offense of which he is charged and convicted.' ■ The causes,for removal and for trial'are not the samé. Under section 274 it is for incompetence, negligence, misconduct, inability to perform the duties of the office, or Willful violation of ■ the -rples, regulations or orders, of the board or a superior officer. Under sec^ tio.n 275 it.is.for incompetence, neglect .of .duty, misconduct in -office or conduct unbecoming an officer. The two sections appear to be separate and to provide different remedies; for dealing with policemen. Section 275 seems fo provide for' disciplining the force ; section 274, for getting rid of them summarily when it becomes necessary, as it did in this case. From an examination 'of the provisions of the charter as to the duties of the mayor in preserving the peace and good order of the-city, and considering the necessities of the case and the language of these two sections, we are led to the conclusion that it was the intention to vest in the commissioners the summary power of removal, which they exercised in this case. It-was not the design in all eases to .bind them to the procedure provided by section 275 of the charter. (

All. concurred.

Writ dismissed, with fifty dollars costs and disbursements.-  