
    The People ex rel. Norman Ramsdell et al. v. Edgar B. Jewett et al., Composing the Board of Police.
    (Superior Court of Buffalo—General Term,
    December, 1895.)
    1: Police—Regulations op. Bueealo force.
    A regulation of the board of police of the city of Buffalo, requiring a certain number of the members of one or both of the platoons not on duty to constitute a reserve, to remain at the station-house subject to call for active duty in case of emergency during short periods of time, does not conflict with the provision of the city charter that no two of the platoons shall be on duty at the saíne time.
    2. Same. " -
    The word “ duty,” as used in the charter, means' actual and active duty as distinguished from being kept in reserve or within call.
    8. Same-T-Emergencies.
    The board of police are' vested by the charter with discretionary power to determine when the public demands require the aid and assistance of .more than one platoon, and such occasions are not limited to times when there is riot; tumult, disorder, a large Are or ' ' extreme breach of the peace.
    Certiorari to review an order of the "board of police. .
    . The purpose of this proceeding is to annul a-determination of the defendants made ajid evidenced by preambles, and resolutions July 5, 1895, prescribing the manner in which the patrolmen of "the police" department of the city of Buffalo shall perform their duties.
    
      John Cunneen and Charles J. Oishei, for’ relators.
    
      A. H. Jackson, for defendants.
   White, J.

The relators are patrolmen in the police force of the city of' Buffalo. The city charter creates a department of police and’ provides that there shall not be less than eleven nor more than fourteen police precincts; that the common council shall fix and determine the number of patrolmen in the police force; that there shall-be-a board of police;,which shall consist of the mayor, ex- offieio, who shall be -the president of the board, and two commissioners; that the board shall designate the number of patrolmen to be assigned to each precinct. The provision of the charter over which this controversy arises is as follows: “ The board (i. e., the defendants) shall designate the number of patrolmen to be assigned to each of said precincts and shall" divide said number of patrolmen into three platoon's, no two of said platoons to be on duty at one and the same time, nor shall they wear uniforms when not on actual patrol duty, except when in the discretion of the board public demands are such as to require the aid and assistance of a second platoon, or the board may in its discretion on such occasions order on duty all of said three platoons * * . .

• On July. 5, 1895, the defendants, by preambles and resolutions, made a determination, order or provision -that thereafter a certain number of the members of one or both of the platoons not .on active duty should constitute a reserve; "that"' the men in reserve should remain at the station house, subject to call for active duty in case of emergency during short ¡periods of time when a platoon other than the one to which they belonged was on- active duty. In other words, the defendants decided and determined that certain patrolmen' who were not members of the platoon on active duty should hold themselves in readiness to respond to a call to active duty in case of an emergency, at one and the same time that a platoon of which they were not members was engaged in active duty.' The men so in reserve were not required to wear their uniforms nor to observe any particular line of con- - duct except to be at the station house and to respond if an emergency made their services necessary. This arrangement of July fifth was immediately put into practice by the defendants, and that is what the relators complain of-. As matter of fact the hours of active duty are less under this new management than they were finder the one in force prior to its adoption. The aggregate of time spent, by all the members • of any platoon in active duty and in reserve slightly exceeds eight hours out of‘ the twenty-four for each member of -the platoon.

The claim of the relators is that the holding of a member of any platoon in reserve at the station house while a platoon other than the one to which he belongs is ón .active duty is a violation of the statute, in that it requires members of two platoons to be on duty at one and the same.time.- They claim further that the “ occasions ” mentioned in the statute when the defendants are authorized to order on' duty at one and the same time members óf different platoons are times only when there is riot, tumult, disorder, a large fire or an extreme breach of the peace within the city. ' They also claim -that when the new arrangement was made by the defendants there was not sufficient evidence of its necessity, or that one platoon on active duty was not adequate for the proper police protection of the city.

The facts of the case’touching the necessity of the- action taken by the defendants- which it is sought to annul, -according to the record as it is made up, are about as follows:.

There wás no riot, tumult, large fire or extreme breach of the peace ; there was more or less disorder, but it may be assumed that it was not greater than usually prevails in the city of Buffalo.

The language of the provision of the charter with which we are dealing is not such as we should expect from one skilled in the drafting "of statutes, but its real meaning may be determined, -I think, with less difficulty than is frequently met with by courts in similar cases. We may broadly assume, for the. . purposes of this proceeding, that when the statute in question sáys".“nó two platoons to be on" duty at one and the same-time,” it means simply that no member of one platoon shall be required to- do .duty with -.another, platoon, on the theory that the greater number, of .the whole platoon, includes the . lesser number, or some part of the platoon; that when the statute says that “ platoons shall not wear uniforms when not on active duty, except when, in the . discretion of the board,, public demands are such as require the aid and assistance of a. second "platoon,” it means simply that no patrolman shall wear his-uniform when not on actual -active duty, and when the statute- says the board may, in its discretion on such occasions, order oh duty all three platoons, it means simply that they may order on duty any part of said three platoons. Such is evidently the meaning of the law. - \

¡Now a careful comparison off the statute with the record before us and the determination sought to be annulled makes it plain, '

1. That the defendants designated the number of patrolmen to be assigned to each police precinct.

2. That the defendants divided the patrolmen in each precinct into three platoons. ' •

3. That no patrolman is required to wear his uniform except when he is on actual active-duty.

4. That no member of either of the' three platoons is required to perform active patrol duty at the same time that a platoon Other than that of which he is a member is performing active patrol duty. •"

If the word “duty” as used in the statute means actual active patrol duty, as I think it does, then the defendants must succeed in this controversy, because they have not violated the law, .but have complied with all of its requirements. The “ duty,” of the relators within the meaning of the charter is measured by the service which they are obligated to perform as patrolmen. The word ,as used in the charter has no reference or relation to their conduct, in religion, morals or ethics. The- duty of the relators to respond to a call for service within the line of their vocation in case of an emergency is the same whether they be at the station house or in their own homes, or whether they be in uniform or not when the call is made. In either case it is then* “ duty ” to respond and perform in a proper manner the necessary service, and it is only while they are performing such service that they are on “ duty ” within the meaning of the charter.

' My conclusion upon this point, therefore, is that the word “ duty,” es used in the charter, means actual and active duty as distinguished from being kept in reserve or within call for such actual and active duty. The fact that the defendants use the expression “ reserve duty ” does not imply that they give to the word a definition different from what I consider the correct one, and even if it did it would not prove the fact to be as it may be claimed by the. relators their language indicates.

The relators when held in reserve are hot on duty, therefore, within the meaning of the charter, but they are thus kept in reserve to be placed on duty if an emergency shall make it necessary, and in. the absence of any emergency during the time they are held in reserve they are set at liberty from the restraint which has been put upon their movements, without having performed a moment of such active duty as by the charter they are required to perform as patrolmen.. In my opinion there is no conflict between the charter and the determination of the defendants sought to be annulled.

For the purpose, however, of further considering the matter in hand, we will assume for the sake of the argument made by the. relators that’. • the relators are doing, duty ” within, the meaning of' the charter when they are held in reserve. . Then, as members of different platoons.are on. duty at one and the samé time, the question arises^ in what manner- and by whom is it to . be determined -whether or not public demands are such as. to require such service? I can find ..no basis for the claim,made by the relators in.this behalf, that' is to say, that such' service can be required only.in-cases of riot, tumult, etc. The. charter, as we have, construed it for the purpose of this proceeding, is given its broadest possible meaning, and is in. effect that, on occasions' when public demands .require it such'service may be. exacted of -the .relators.. The .words “ public deniands ” and “ occasions ” refer to and identify the same thing ór. subject-matter, namely,, a necessity, for having, members of different -platoons on duty at one and the ' same time. The very nature of. the case makes it clear to me that: -the "defendants, in administrating the affairs of their department, must necessarily act for the - most part upon apprehensions of danger to "the community which may or may . not prove to have been well founded, They must necessarily heed and act upon rumors, news items in' the daily-, press and other publications,- -confidential' communications;, -surmises or guesses, if you please Soto designate them, and information,o.f. a more or less reliable nature derived from .countless sources, as well as upon their own personal knowledge concerning the .matters with which they have to deal. .In such-a condition of .things it is-easy to . see that an’-emergency may arise at’.any : moment requiring members of different platoons to be on duty at One" arid the same - time, when to prove the fact that.the, .emergency exists by. such evidence as would bé.receive.d.by a. court of justice, trying a controverted question .of fact, would .be an absolute impossibility. ' i .

E.or this reason alone, as it seéms to me, it must - be held -that the defendants’ aréwested with, the . discretionary power to determine and decide for Themselves whén, iri the. language .-of-.the charter, “ public demands, are such as require that mem;bers of different pilatoons shall:be. on, duty at one. and the sanie time.” .

To hold that the relators are entitled to litigate with their superior officers the question as to whether or not public demands require the services of more or less of the members of the three platoons of patrolmen in a precinct at one and the same time would be subversive of all discipline and of that wholesome respect for constituted authority so essential to the efficiency of the .police force of a great city.

The case of People ex rel. Purdy v. Fitch, 147 N. Y. 355, relied upon by the relators as authority for the contention that the writ of certiorari will lie in such a case as the one at bar does not, in my opinion, support the conténtion. That and many other cases hold, and in fact the rule is elementary, that where, as _ in that case, a board or officer exercises judicial functions, and no other adequate remedy is available to cor-rect errors made by it or him, the aggrieved party may prosecute the writ of certiorari, but that and all other cases to which my attention has been called where the writ was upheld are clearly distinguishable from the one at bar, in that the determinations reviewed were based on evidence which was certain and definite, and could be intelligently weighed and considered by a court on a review of the matter ; whereas, in the case at bar, the evidence upon which the defendants made the determination complained of may or may not have been Of that character, and even if it were of that character in the particular instance under, consideration, action by them on the same line, while exercising their functions as a board of police, must frequently and probably usually will be based on facts satisfactory to them, but which, if submitted to a court in a subsequent controversy as to the fact whether public demands were of a specific nature on a certain date in the past, would seem puerile and foolish.

My conclusion is that the writ- should be dismissed, with costs.

Titus, Oh. J,, and Hatch, J., concur.

Writ dismissed, with costs.  