
    The People ex rel. Patrick Masterson, Resp’t, v. Stephen B. French et al. as Police Commissioners, etc., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed October 2, 1888.)
    
    New York (city of)—Police officer—Dismissal of, after trial before POLICE COMMISSIONERS—POWER OF SUPREME COURT TO REVIEW.
    When a dereliction of duty on the part of a police officer has been proved to the satisfaction of the police commissioners, tlie sufficiency of an excuse therefor presents no question of law, or facts,, for the courts, but is addressed solely to the judgment and discretion of those who are primarily charged with the duly of maintaining the discipline and efficiency of the police force. Such question is exclusively for the consideration of the commissioners, and the appellate court has no authority to review the exercise of their discretion on the subject.
    Appeal from an order of the supreme court, general term, first department, setting aside an order of the police commissioners of New York city, dismissing the relator from the police force and from an order reinstating the relator as an officer. The matter came before the general term of the supreme court, upon a writ of certiorari to review the action of the commissioners.
    
      N. C. Moak, for resp’t; David J. Dean and W. L. Turner, for app’lts.
    
      
       Reversing 13 N. Y. State Rep., 904.
    
   Ruger, Ch. J.

The relator was tried before the police commissioners of New York upon an issue formed by a plea of not guilty to a charge of conduct unbecoming an officer, with a specification alleging that during “his tour of duty at 4.50 p. m. October 14, 1887, he was so much under the influence of intoxicating liquor as to render him unfit for duty,” and was found guilty and dismissed from the force.

Foqr witnesses, consisting of a police inspector, captain of police, police sergeant and police surgeon, were examined on the trial as to the condition of the relator, and testified, among other things, that he was found asleep in a room on his beat, and when aroused was so drunk that he could neither walk nor stand alone; that his breath, eyes, complexion, conduct and effluvia all showed that he was grossly intoxicated. The police surgeon also testified that the relator admitted to him, upon being brought to the sta ■ tian, that he was intoxicated, and gave as an excuse therefor, that he had attended a chowder party the evening before. The relator was sworn in his own behalf, but gave no evidence contradicting any of the facts proved on the pai’t of the prosecution, or the admission to the police surgeon that he was intoxicated when brought to the station.

He testified that he had theretofore occasionally been affected with vertigo, and was ill of that complaint on the day in question, and had in accordance with the advice of a physician previously given, taken two does of Bromide of Potassium and Ammonia, one in the morning and another about 3 o’clock p. m, ; that l>e also drank something which a gentleman handed him in the room where he was taken, but he did not know what it was. He was corroborated by a witness, who testified that at the time stated, be gave the relator a glass of brandy and ginger, which he drank, and by a physician, who testified that he had in the summer of 1883, prescribed Bromide of Potassium and Ammonia for the complaint affecting the relator, and told him that it would not do him any harm to take this and a drink of brandy. Two other witnesses testified that, in their opinion, the relator was sick upon the occasion in question.

Upon a removal of the proceedings resulting in the relator’s dismissal, to the general-term by certiorari, that court reversed the order of the commissioners, and reinstated the relator in his office, upon the ground, as stated in the order of reversal, “that the facts proven are insufficient to authorize the judgment and determination by said commissioners. ”

We are not entirely clear as to what the general term mean by saying that their reversal is made for the reason that the facts proven are insufficient to authorize the decision of the commissioners. If this language be taken literally and held to mean just what it says, that the charge proved did not authorize the order made by the commissioners, the decision was manifestly erroneous. The order, as thus construed, presents a question of law simply as to whether the board had authority, under the rules applicable to the subject, to dismiss an officer for the cause stated. Those rules expressly provide that any member of the police force may be reprimanded, forfeit his pay or be dismissed from the service, for either of the following offences, viz.: Intoxication, neglect of duty, or conduct unbecoming an officer.

The case is therefore brought directly within the letter and spirit of the rule, and fully justified the order of dismissal.

Under the practice prior to the Code the general term had power to examine, the evidence returned upon a common

law certiorari only for the purpose of seeing whether the subordinate tribunal had kept within its jurisdiction, and there was evidence legitimately tending to support its decision and that no rule of law affecting the right of the relator had been violated. People ex rel. Murphy v. French, 92 N. Y., 309; People ex rel. Hart v. Bd. of Fire Comrs, 82 N. Y., 360.

Under section 2140 of the Code of Civil Procedure, their jurisdiction has been somewhat enlarged and they are now, when there is any competent proof of the charges made, authorized to review the facts and determine whether there was “upon all the evidence, such a preponderance of proof against the existence of any of those facts, that the verdict of a jury affirming the existence thereof, rendered in an action in the supreme court, triable by jury, would be set aside by the court as against the weight of evidence.”

It is quite impossible, we think, to^bring this case within the class authorized to be reviewed by the general term upon the facts.

The fact in controversy under the issue made, was whether upon the occasion in question, the relator was rendered unfit for duty by reason of his intoxication. The proof on this question was clear and positive, and practically 'undisputed on the trial. The fact that the relator was grossly intoxicated and thereby rendered incapable of performing his duty, was placed beyond controversy by the evidence. The relator cfid not in his testimony upon the trial, attempt to deny the fact of his intoxication or question his want of capacity to perform duty, but contented himself with suggesting his alleged physical ailment as a pal- ^ liation of the offense. He neither admitted or denied that ' he had been drinking nor did he claim that he had done so in pursuance of the prescription of his physician, but left the case made by the prosecution wholly unaffected by contradictory proof.

There was here no such conflict of evidence, much less such a preponderance of proof, as authorized a reversal by the general term of the determination of the commissioners within the rule prescribed by the Code. Conceding the existence of an ailment on the part of the relator, as claimed by him, it affords no justification of his conduct,

Heither does it produce a conflict of evidence upon the issue tried, but operated, at the most, as a palliation of his conduct entitling him, perhaps, to the favorable consideration of his judges in determining the degree of his punishment.

If, however, we should give a strained construction to the language of the order of reversal and hold that the general term thereby intended to pass upon the adequacy of the excuse offered by the relator and determined that it was sufficient to purge the offense, we still think they exceeded the authority for review conferred upon them by the Code.

Upon the view wé take of the case it stands as though the relator had plead guilty to the charge and alleged the extenuating circumstances in mitigation of the punishment which he had incurred by reason of his offense. This would present a question pertaining solely to the general government and discipline of the force, and must, from the nature of things, rest wholly in the discretion of the commissioners. Such a question we do not think reviewable in an appellate court. When a dereliction of duty on the part of an officer has been proved, the sufficiency of an excuse therefor presents no question of law, or fact, for the courts, but is addressed solely to the judgment and discre tian of those who are primarily charged with the duty of maintaining the discipline and"efficiency of the force.

The law is adapted to the purpose of guarding and protecting legal rights, punishing legal wrongs and enforcing legal duties and, in the very nature of things, cannot wisely or prudently interfere with the performance of discretionary duties imposed upon individuals selected for their adaptation to its exercise and who are specially charged with its performance. Whether, under special circumstances, a particular officer is excusable for having voluntarily rendered himself unfit for duty or violated police regulations, depends so much upon the personal knowledge and experience of the commissioners and the consideration by them of individual character, the general moral condition and discipline of the force, and other facts peculiarly within their knowledge, that an attempted review of this action by an appellate tribunal would proceed in a great measure-in ignorance of the facts upon which it was predicated.

The government of a police force assimilates to that required in the control of a military body, and the interference of an extraneous power in its practical control and direction must always be mischievous and destructive of the discipline and habits of obedience which should govern its subordinate members. If its determinations upon all questions-are subject to review, and appeals to some tribunal outside the force, may be taken without restraint it must necessarily lead to a want of respect towards their official superiors, and an impairment of the habits of obedience and discipline which are so essential to the efficiency and good conduct of a well regulated police force.

We are, therefore, of the opinion that this question was exclusively for the consideration of the commissioners, and that the appellate court had no authority to review the exercise of their discretion on the subject. People ex rel. Hart (supra).

The order of the general term should be reversed, and that of the commissioners affirmed, with costs against the relator in both courts.

All concur..  