
    The People of the State of New York ex rel. Hiram H. Miller, Relator, v. William C. Elmendorf, Mayor of the City of Ithaca, Respondent.
    
      The removal of a patrolman by- a mayor who prefers charges, secures witnesses and prejudges the accused, will not be sustained.
    
    The decision of the mayor of a city, adjudging a patrolman on its police force guilty of certain charges and removing him from office, should be reversed, where it appears that the mayor, who alone presided at the trial, preferred and formulated the charges, that he interested himself in procuring witnesses in support thereof, and that before the trial he declared that he would get rid of the accused officer.
    Parker, P. J., and Merwin, J., dissented.
    Certiorari issued out of the Supreme Court and attested the 20th day of October, 1899, directed to William C. Elmendorf, mayor of the city of Ithaca, commanding him to certify and return to the clerk of the county óf Tompkins all and singular his proceedings in relation to the removal of Hiram H. Miller from the office of patrolman on the police force of the city of Ithaca.
    
      F. E. Tibbetts, for the relator.
    
      Edward J. Mone, for the respondent.
   Kellogg, J.:

It is usual and proper for a court, in reviewing proceedings such as these, to allow to the acting tribunal a very wide range for the exercise of judgment and discretion. And this practice appears to be built upon the theory that the Legislature created an impartial local tribunal in which charges of malfeasance or misfeasance or incompetency may be heard and investigated with entire safety to the parties interested, and the decision of such a tribunal is "rightfully entitled to the greatest consideration. If the local tribunal, however, has not the appearance of impartiality, if it appears to have been influenced by personal hatred towards the accused, or to have assumed the attitude of accuser or prosecutor towards the officer on trial, or to have prejudged the case, the decision, if adverse to the officer, ought to have little or no weight in any court of justice.

The relator here is charged-with having. forfeited a right secured to him as an honorably-discharged veteran soldier through being guüty of acts which, if true, also seriously affect his reputation as a citizen. The forfeiture can be declared only after a trial — a trial conducted in fairness, such a trial as is guaranteed to persons accused of grave offenses. It must not he a matter of form only; a means taken simply to make a record, to register a decision and judgment made by the local tribunal long before the trial was had. The accused is entitled to the unbiased judgment and decision of a tribunal upon the testimony presented.

The trial of the relator was befoi'e the mayor alone. The mayor formulated the charges, and, I think, the record warrants the eon- ■ elusion that the mayor was the real accuser and himself made the charges and stood back of them. No other name appears; no other person is behind the accusations. The mayor appears to have taken an interest in procuring witnesses to support the charges, and ,it appears that he had previously removed the relator from his office and before this trial liad begun had made the open declaration : “ But Miller will go back to police duty in this City when there is no remedy left by law to stop it.” It also appears that some two weeks before the trial the mayor had declared to others “ that would get rid of Officer Miller.” A careful examination of all the facts and proofs contained in the record leaves the impression too firmly-fixed that the mayor had. decided the case before the trial; that the trial was only a form by which his decision might be made a record and effectual for a lawful removal:

We might here pass upon the testimony, perhaps, and might reach the same conclusion reached by the mayor; but the evidence is conflicting; the evidence produced in support of the charges comes for’ the most part from witnesses of doubtful character. I do .not think we can properly weigh such testimony without seeing and hearing the witnesses. On the record evidence the relator might have been, on a judicious weighing of the testimony found not guilty. • The decision of the mayor, for the reasons' stated, carries no weight. It is not the decision of an impartial or fair tribunal. The relator has not had his day in court, nor any trial.worthy of the name. It may be that there "is no other court in which the relator can be tried, but that fact does hot create such a grave necessity as to warrant a condemnation without a trial.

I think the decision of the mayor should be set aside and that the relator should be reinstated in the office from which he was removed, with ten dollars costs, besides disbursements against the defendant.

All concurred, except Parker, P. J., and Merwin, J., dissenting ; Smith, J., concurring in result.

Herrick, J. :

I concur upon the ground that the mayor cannot be at the same time accuser, prosecutor and court. Ho man can be the judge in his own case.

Determination of respondent reversed, with ten dollars costs and disbursements, and the relator reinstated.  