
    The People of the State of New York ex rel. Robert MacNish, Relator, v. Rhinelander Waldo, as Police Commissioner of the City of New York, Respondent.
    Second Department,
    April 10, 1914.
    Municipal corporations — police — Three Platoon Law construed — when order that police officer perform extra duty unauthorized — dismissal for failure to obey illegal order.
    Under the so-called “Three Platoon Law” (chapter 360 of the Laws of 1911), providing that in cities of the first and second class no member of the police force shall be assigned to a tour of duty exceeding eight hours in the twenty-four excepting in cases of specified emergencies, and while on reserve duty policemen shall not be required to render any service, except in cases of emergency,'a police officer who has served his eight hours cannot be required to report later in the same day for drill instruction, nor can he be dismissed from office for refusing to obey such order.-
    Jenks, P. J., dissented in part, with memorandum; Putnam, J., dissented, with memorandum.
    Certiorari issued out of the Supreme Court and attested on the '7 th day of June, 1913, directed to Rhinelander Waldo, as police commissioner of the city of New York, commanding him to certify and return to the clerk of the county of Kings all and singular his proceedings had in dismissing the relator from the police force of the city of New York.
    
      Florence J. Sullivan, for the relator.
    
      James D. Bell [Frank Julian Price and Archibald R. Watson with him on the brief], for the respondent.
   Stapleton, J.:

The relator was a member of the police department of the city of New York. His rank was that of patrolman. At about twelve-fifteen A. M. on May 9,1913, he was ordered by the lieutenant at the one hundred and seventy-fourth precinct, where he was stationed, to report for drill instructions at the Thirteenth Regiment armory at three p. m. of the same day. The drill consisted of marching, and during the drill the men were under the directions of then’ superior officers. The relator did not report for drill as directed, and for his failure so to do he gave the following written reason: “ I did not attend drill this p. M., the same being my time off, and in (sic) the same being in violation of law.” He was put on trial for disobedience of orders, found guilty as charged and dismissed the force on June 4, 1913. He brings this writ of certiorari to review the determination in that proceeding. The facts are admitted, but the relator contends that the order was not a lawful order, and that he was, therefore, free to ignore it. He submits that the order was void inasmuch as it was violative of chapter 360 of the Laws of 1911, entitled, “An Act to promote the health and efficiency of policemen in cities of the first and second class,” and popularly known as the Three Platoon Law. The sections of that law which have particular relation to this case are:

“ Section 1. * * * The commissioner of police, * * * or other officer or officers, having the management, control or direction of the police force of any city of the first or second class in this State, shall divide the sergeants, roundsmen and patrolmen of such force * * * who may be on duty in the open air, on the streets or other public places of the city, into three platoons. Ho one of such platoons nor any member thereof shall be assigned to more than one tour of duty; such tour of duty shall not exceed eight hours of each consecutive twenty-four hours, nor more than eight hours of reserve duty of each consecutive seventy-two hours, excepting only that in the event of strikes, riots, conflagrations, or occasions when large crowds shall assemble, or other similar emergency, or on a day on which an election authorized by law shall be held, or for the purpose of changing tours of duty, so many of said platoons, or of the members thereof, may be continued on duty for such hours as may be necessary. * * *

“ § 3. Policemen, while on reserve duty as mentioned in the first section of this act, shall not be required to render any service except in case of an emergency, and shall be free to retire for sleep during reserve duty in their station house, subject to call in case of an emergency. For the purpose of this act, an emergency shall be defined as enumerated in section number one of this act.”

So far this law has not been the subject of judicial interpretation, but on March 28, 1912, the Attorney-General gave an official opinion, in which he said: ‘ ‘ Beyond all doubt it is the evident and clear purpose of section 1 of the statute under examination to limit the active service or duty of such sergeants, roundsmen and patrolmen to only eight hours in each consecutive twenty-four hours. There is nó substance in the suggestion that the forced performance of drill duty within the twenty-four hours in which such sergeants, roundsmen and patrolmen have already performed their regular eight-hour tour of duty is not active duty or service within the provisions of section 1 of chapter 360 of the Laws of 1911. If such policemen are not on active duty they must be deemed on reserve duty, but according to section 3 - * * while on reserve duty ’ they ‘ shall not be required to render any service except in case of emergency and shall be free to retire for sleep during reserve duty in their station house, subject to call in case of an emergency.’ * * Under section 1 emergencies are defined as ‘strikes, riots, conflagrations or occasions when large crowds shall assemble, or other similar emergency, or on a day on which an election authorized by law shall be held.’ This compulsory drilling is clearly not an emergency provided for in section 1 of this law, nor is such compulsory drilling permitted or authorized by section 2 of the law under consideration. I am therefore of opinion that officials * * * are without authority to require any sergeants, roundsmen or patrolmen of such force to perform drill duty or to go to certain designated places in order to receive instructions in drilling in addition to and within the twenty-four hours in which such policemen have already performed their regular eight-hour tour of duty.”

This opinion is in accord with the intendment of the statute, which clearly meant, by the provisions of section 1, to limit the active duty of the designated officers to eight hours in every twenty-four consecutive hours, except in the event of certain specified emergencies, of which drilling was not one. The exemption from active work applied to the remaining sixteen hours; but lest, because of the physical presence of the men in the station, there should be any uncertainty as to their rights while on reserve duty, it was provided by section 3 that while on reserve duty they shall be free to retire for sleep, subject to call in the event of the emergencies specified.

The respondent, in a supplemental memorandum, calls attention to the case of People ex rel. Gallagher v. Waldo, decided in the First Department, a memorandum of which appears in 160 Appellate Division, 881. The memorandum reads: “Writ dismissed and proceedings affirmed, .with fifty dollars costs and disbursements. No opinion.” That case is distinguishable from the present one. There the relator, who was a police sergeant, was relieved from active duty at midnight. He was then free until eight a. m. and could have gone home if he cared to; but as he lived out of town he' slept in the station instead of going home. Around twelve-twenty a citizen complained of having been insulted by a police sergeant in the toilet of the station, and Gallagher, who at this time was upstairs in his night shirt, was directed by the lieutenant to come down to the desk to be confronted by the accuser. He refused to do so, saying, “They can see me on my tour at 8 o’clock.” He was tried for insubordination and dismissed from the force. The charge against him was not that he refused to perform extra duty, but that he refused to appear at the desk to be confronted with a person who had accused a police sergeant of an offense, he being the only one of the three sergeants who had not appeared before the accuser.

With the policy of this legislation or the effect of it upon the administration of the police department, we have no official concern. We are to decide the law as it is written, and when it is written plainly, as in the case of this statute, our sole guide is the statute itself. The commissioner and the commanding officer of the department are creatures of the written law and they have no authority except that expressly conferred by the law of necessarily incidental to the proper discharge of the powers expressly conferred.

The first impression is to recoil from the suggestion that a subordinate in a department, for the proper management of which discipline is essential, may construe a statute, and, if his construction is correct, disobey with impunity an order of a superior given in violation of the statute. But the law is on the books and must be given effect. It is not sufficient to say that a penalty is prescribed for its violation and that its life must be preserved solely by that means. Those concretely interested in its enforcement are not required to wait until some jury agrees with the policy of the legislature. They may, as good citizens, refuse everywhere, at any time, to aid in its violation by obeying orders given in defiance of its provisions.

We are constrained to hold that a member of the police force may not be dismissed for disobedience of an order which violates the provisions of chapter 360 of the Laws of 1911.

The determination of the police commissioner is annulled, with fifty dollars costs, and the relator reinstated.

Thomas and Rich, JJ., concurred; Jenks, P. J., concurred ■ in the result in a separate memorandum; Putnam, J., read for confirmation.

Jenks, P. J.

(concurring):

I agree with my brother Putnam in his interpretation of the statute, but I am against affirmance because as a result the relator is dismissed the force. As I read the record, his action was to make a test case in order that his duties and his rights as prescribed by a statute in direct regulation of the police force might be determined by the court. The question is substantial, and our difference indicates it is serious. Under the circumstances, I think that the relator should not be dismissed the force for disobedience of orders. My opinion is limited to the peculiar facts of this case, and does not involve the general proposition that a policeman may refuse obedience to orders or to regulations perforce of his personal view of the law.

Putnam, J.

(dissenting):

Patrolmen have as “time off” the intervals that may come between the tour of duty on patrol and the period of reserve, or between two successive tours upon patrol. If between patrol tours there come eight hours on reserve (which may be once in seventy-two hours, § 1), the “ time off ” maybe but four consecutive hours; if no reserve duty intervenes, the patrolman may have sixteen running hours as “time off.” A clear distinction is made between “ reserves” and men off all duty, enjoying “time off.” “Reserve duty” is for those patrolmen who once in three days are not in the open air or on streets or public places, but are held at the station houses for emergencies. Section 3 declares that such policemen “ while on reserve duty”—a condition not left vaguely—-but “as mentioned in the first section of this act,” that is, such men held for duty at the station houses—“ shall not be required to render any service, except in case of an emergency, and shall be free to retire for sleep during reserve duty in them station house, subject to call in case of an emergency.”

The relator was not on reserve duty when he was ordered to report for drill. This Three-Platoon Law did not relieve him from obedience to the rules of the department (§ 6). Not being one of those within the exemption of section 3, who are those held on reserve duty, he was not justified in refusing to report for drill.

Such seems to me the literal construction. It allows a needed rest to the men held on duty at the stations. It is also designed to prevent the reserves from being depleted by details to outside work. I think this act did not discharge from obedience all policemen during their “time off.” Seven hours of drill in a year seems reasonable, in order to maintain police discipline and efficiency.

Hence, I vote to confirm.

Determination annulled, as a matter of law, and not in the exercise of discretion, with fifty dollars costs and disbursements, and relator reinstated.  