
    THE PEOPLE on rel. DILLON a. THE BOARD OF METROPOLITAN POLICE.
    
      Supreme Court, Second District; General Term,
    
    
      Dec., 1862.
    Certiorari.—Jurisdiction.—Police Regulations.—Disobedience of Orders.—Nuisance.
    The office of a common-law certiorari is to bring up the record from the inferior tribunal. And if the inferior court appears to have had jurisdiction, the Supreme Court will not examine the evidence for the purpose of reviewing the decision upon the merits.
    "Where the jurisdiction of an inferior court depends upon the evidence taken before it, the Supreme Court, on certiorari, will examine such evidence, in order to determine the question of jurisdiction, but for no other purpose.
    A policeman in a populous city was directed to kill a dog, which had bitten a child, or bring the dog to the station-house : he disobeyed the order,—Held, that such disobedience was unwarranted, and justified punishment.
    A dog in the habit of flying at persons in the public streets, is a nuisance.
    Common-law Certiorari.
    
      This was a certiorari obtained on the relation of Patrick E. Dillon, and directed to the Board of Metropolitan Police of the Metropolitan Police District of the State of Hew York, composed of John Gr. Bergen, Thomas P. Acton, and James Bowen, Commissioners of Police. The certiorari was issued in October, 1861, and brought up proceedings had in August, 1860, removing the relator from the police force. The charge against the relator was disobedience of orders: the specification that, on the 6th August, 1860, he was ordered by Sergeant Terry to go to Hamilton Av.enue, and either kill a dog .that had bitten a child, or bring it to the station-house. He proceeded to the place and found the dog, but did neither kill him nor bring him to the station, as ordered by the sergeant.
    The relator was tried before the commissioners on notice to him. The testimony was as follows :
    Sergeant Terry sworn : On the 6th inst., an order came from the mayor’s office to have a dog killed. Captain Holbrook' looked at the order, and told me when the roll was called to send a man and carry out the order. I sent defendant, and he came back and said there was nothing in the case. When I told him to destroy the dog or bring him to the station-house, he answered, “ Bring him here ?” I said, “Yes, bring him here, or destroy him.” He did neither.
    Mary Lynch sworn : On Sunday evening my little boy was playing at the door; there was a dog there with a bone near by; he dropped the bone and bit the child on the neck and on the arm; I went to the mayor and got an order to have the dog killed ; the defendant came and said he thought the child wasn’t badly injured enough to have the dog killed; I said! wanted the dog killed; I asked the defendant, finally, if he was going to kill the dog; he said he would see about it; he went away at last without doing any thing about it; and when another officer came, the dog couldn’t be found; I saw defendant going into Fesler’s drinking-place; don’t know that he drank any thing.
    Elizabeth McDonald sworn: I saw the dog bite the child; didn’t see Dillon go into Fesler’s.
    Bridget Lynch sworn: I saw the dog on the sidewalk.
    Defendant sworn: I received the order on the 6th ; I understood, as is usual in such cases, that I was to exercise a little judgment in the matter; the sergeant gave me an order like this : “ Bring the dog or kill him, if you think the matter serious the dog was about three months old; I have always acted on such orders, when I found the dog had bitten any one; I found a scratch about the size of a head of a pin; I did see a dog in the street, but didn’t understand that it was the dog in question.
    The commissioners adjudged the charge proven, and dismissed the relator from the force. The return showed the foregoing facts and the circumstances of the trial and judgment.
    
      Britton & Ely, for the relator.
    I. There is no proof whatever that the relator wilfully disobeyed’the order given him. It does not appear that he saw the dog, or that it was possible for him to have seized or killed him.
    IT. The order required him to perform an illegal act, and he was not bound to obey it. 1. The order of the mayor would have been no justification for a compliance with the order. ■ The mayor had no power in the matter. None but a justice of the peace was by law authorized to act, and he only in the manner prescribed in the statute. (1 Rev. Stat., 706, § 17.) 2. The order of his superior officer would have been no justification for doing an illegal act.
    III. The court on certiorari are authorized to look into the evidence so far as to see that there was evidence to sustain the action of the tribunal below. (Mullins a. People, 23 How.Pr., 289.)
    
      A. J. Vanderpoel, for Board of Police.
    The proceedings which resulted in the removal of the relator were, in all respects, regular.
    II. The cause for removal was sufficient. The subject-matter was within the jurisdiction of the board. The evidence sustained the charge. 1. The court, on a common-law certiorari, abstains from interfering with the decision of inferior tribunals, in cases within their jurisdiction on questions of fact. Their decisions on the merits are final and conclusive. (Carter a. Newbold, 7 How. Pr., 166; People a. Goodwin, 5 N. Y, 568; People a. Van Alstyne, 32 Barb., 131.) 2. The dog was a nuisance, and, independent of the order of the mayor directing that he be killed, any person had a right to kill him. The relator saw the dog in the street. He showed gross negligence if he did not ascertain it was the dog he was searching for, when in conversation with the complainant, and he is contradicted by other evidence. (Dunlap a. Snyder, 17 Barb., 561, Hand’s Opinion; Maxwell a. Palmerton, 21 Wend., 407; Loomis a. Terry, 17 Ib., 496, 500; Police Act, § 29.)
    III. The delay of the relator in suing out this writ, ought to be a.sufficient ground for quashing it. This point can now be urged upon the court with the same effect as if it arose upon a motion to quash the writ. (People a. Supervisors of Allegany, 15 Wend., 198, 203.)
    IY. The writ of certiorari is not, like a writ of error, a writ of right. It rests in the discretion of the court. It is often denied where the power to issue it is unquestionable, and where there is apparent error in the proceedings below. (People a. Supervisors of Allegany, 15 Wend.,198, 203; People a. Mayor, &c., of N. Y., 2 Hill, 9; 5 Barb., 43; People a. Stilwell, 19 N.Y., 531; People a. City of Rochester, 21 barb., 656; Matter of Mount Morris Square, 2 Hill, 14; Onderdonk a. Supervisors of Queens, 1 Ib., 195.) It is true that there is no statute limiting the time for suing out a writ of certiorari. But the court will regard the delay as a circumstance' entitled to much weight. (Elmendorf a. Mayor, &c., of N. Y., 25 Wend., 693; People a. Mayor, &c., of N. Y., 1 Hill, 9.)
   By the Court.—Brown, J.

On the 6th of August, 1860, the relator was a member of the Metropolitan Police force of the metropolitan district of the State, and on the 11th of the same month was removed from his office by an order made by the defendant. This writ of certiorari is brought to remove the proceedings into this court for review and reversal, upon the ground that the Board of Metropolitan Police exceeded its authority, and that its proceedings were illegal and erroneous.

The 10th section of the act of the 10th of April, 1860, to amend the act concerning the Metropolitan Police district, provides for the appointment by the board of the superintendent, and other officers and members of the police force, whenever vacancies occur therein, and confers upon it authority to promulgate all regulations and orders through the superintendent of police, who shall be the executive head of the whole police force of the metropolitan district, with the direction and control of the force, subject to the rules and regulations of the Board of Police. The 13th section of the act also directs that each member of the force shall hold office during good behavior, and shall be liable to be removed only after written charges shall have been preferred against him, according to the rules and regulations of the Board of Police, and the same shall have been publicly heard and examined after notice to him thereof by the board, in the manner prescribed by such rules and regulations. These two sections briefly prescribe the mode of appointment to office, the duration of the term thereof, and the manner of removal therefrom. Written charges are to be preferred against the member charged with delinquency. Notice is to be given to him of the hearing before the Board of Police, and the same are to be publicly heard ; that is, there is to be a public trial upon written charges, of which the accused is to have due notice, with an opportunity to be present at the examination of the witnesses, and to offer such defence as he may have to make.

The return to the writ of certiorari is full and explicit upon all these points. It appears that charges of disobedience of orders were duly preferred against the relator. A copy thereof was duly served- upon him, which he was required to examine and answer. A notice was also given to him of the time and the place appointed for the hearing. He was also at the same time served with a copy of Rule No. 7 of the Rules of the Board of Police, which directs that where charges are filed, the chief clerk shall notify the accused to call and examine and answer the same either in writing or orally, to be taken down by such clerk. The rule also directs that the hearing may be had at any subsequent meeting of the board, of which the accused shall be advised. But he may waive such trial and submit the case and answer upon affidavits, after two days’ notice has been given to the complainant of such waiver, and opportunity for the latter to procure witnesses or to furnish affidavits in support of his complaint. The return further shows that on the 11th day of August, 1860, the trial was had before the Board of Police,' at their office, in the city of Hew York. Pour witnesses were sworn and examined on behalf of the complainant, and the relator was then and there also sworn in his own behalf. And after hearing the proofs and allegations of the parties, the board made the order that the charge of disobedience of orders was established and made ont, and that the relator was guilty thereof, and that he be removed from his office as a member of the Metropolitan Police force.

It is not claimed that there is any irregularity in the proceedings themselves which the relator seeks to review. The errors alleged, are,

First, The want of sufficient proof to establish the charge of disobedience of orders.

Second, That the order referred to required the relator to do an illegal act, which he was under no obligation to obey. The sufficiency of the evidence to sustain the charge is not open to question and examination in this proceeding. The office of a common-law certiorari is to bring up the record from the inferior tribunal. And if it appears to have had jurisdiction, this court will not examine the evidence for the purpose of reviewing the decision upon the merits. (Carter a. Newbold, 7 How. Pr., 166; People a. Goodwin, 5 N. Y., 568; People a. Van Alstyne, 32 Barb., 131.)

Where the jurisdiction depends upon evidence to be taken before the inferior tribunal, this court upon certiorari will examine such evidence, in order to determine the question of jurisdiction, but for no other purpose.

The order given to the relator was from one of the sergeants of police. It directed him to proceed to Hamilton Avenue, in Brooklyn, and either kill a dog which had bitten a child, or bring the dog to the station-house. The specification was that he did neither. He did not kill the animal, or bring him to the station-house. It is going very far, I think, to say that such an order issued to a policeman by his superior officer in a populous city, is illegal. A dog.per se is not a nuisance, but a dog with certain habits and propensities, such as flying at persons and biting children upon the public streets, is a nuisance of the worst kind, which it is clearly the duty of the police to suppress. If he did not kill the dog, the order was to bring him to the station-house. Freedom from arrest and detention at the station-house, is not one of the privileges and immunities of dogs. The order, I think, was clearly a legal and proper order, and one that the policeman was bound to obey.

In conclusion, this is not a case in which we should interfere. The discipline of a police force of a large city, to be effectual, must be sharp and severe, and rigorously applied. Disobedience of orders is an offence which should not be extenuated. The proceedings should be affirmed, with costs. 
      
       Present, Emott, P. J., Sohrugham, Brown, and Lott, JJ.
     