
    The People ex rel. Joseph B. Eakins, Appellant, v. Theodore Roosevelt et al., as Police Commissioners, Respondents.
    (New York Common Pleas
    General Term,
    December, 1895.)
    ■Charges are pending against a police officer, within the meaning of section 807 Of the Consolidation Act, where á written accusation against him iñ any form of which it must take notice has been filed with the board of police commissioners, although the charges have not been formulated or notice thereof given to such officer at .the time of his application for retirement.
    
      People ex rel. Eakins v. Roosevelt, 12 Misc. Rep. 622, affirmed..
    Appeal by the relator from an order of the Special Term •of this court, denying an application for a peremptory mandamus compelling the board of police to convene and order that relator be relieved and dismissed from the police. force •and placed on the roll of the police pension fund.
    
      EUhu Boot and Charles A. Hess, for appellant.
    
      ■Francis M. Scott, Cou/nsel to the Corporation (Theodore ■Cormoly, of Counsel), for respondents.
   Daly, Oh. J.

The relator, Police Captain Eakins of the ■fifteenth precinct, had been a member of the police force of the city of New York and performed duty on such force for a period of twenty years, and upwards on the 18th day of May, 1895,^ upon which date he made application to the board of police commissioners to be .relieved. and dismissed from the •. force and service and placed on the roll of the police pension fund; and he was entitled, of right, to have his application .granted by the board, provided there were at that date no ■charges against him pending. Laws of 1895, chap. 569, ' amending Consol. Act, § 307.

On May 13, 1895, five t days before his application, the " hoard had received from C. H. Parkhurst, T. D. Kenneson and Frank Moss, executive committee of the Society for the Prevention of Crime, a letter, inclosing copies of papers, with a statement' that they had been sent that day to the mayor, the superintendent of police and the captain of the fifteenth-precinct (the- relator). The paper sent to .the relator on May thirteenth, a copy of which was transmitted to the board • on the same day, was as follows :

■ - - “New Yoke, May 11th, 1895, •

“Joseph B. Eakihs, , ,

Oarptawi of the 15 th Police Precinct,

“New Morh City.

Sib.— You will find inclosed a list of resorts in your precinct which, presumably with your "knowledge and by your connivance,, are being conducted in open and flagrant violation of law. Whether you had ever made yourself familiar with " your obligations in such matters prior to your appointment to a captaincy may be something of a question, but for the- past three yéars there has been such an amount of educational matter sent out from the office of the Society for the Preven- ■ . tion of Crime bearing úpon the. official delinquencies of the police and the sworn duties devolving upon them that it would, seem that even the intelligence, and possibly the conscience,. • of a police captain would have received certain impressions of - a quickening and stimulating character. The opinion seems to have been formed in your mind, and in that of your fellowr captains, that the criminal administration of the affairs of your department had been so long a part of the life of the town ' that no change in municipal government could suffice to work any substantial alteration or betterment. Things could not ' have- been managed in your precinct as we know them to have been managed in the months that have transpired since the new city administration came into power, if you had had any particular concern or anxiety as to what that administration might intend and undertake.. We have, in the meantime^ been keeping careful watch upon you . and your colleagues, and have decided to furnish you and the new police co'mmis-' sioners with some of the results of our observation, not because ■ of the existence of a certain amount of criminal lawlessness in your precinct, but for thee reason that the viciousness of the resorts which you. are harboring is so gross and open that the fifteenth precinct is now, as it has long been, a moral plague spot in the city and a reproach to our civilization and a disgrace to the department that has hitherto tolerated.. it. Careful evidence has been secured in regard to the resorts specified in the accompanying letters, most of which you will probably instantly recognize. We shall observe your method of dealing with our complaint, and shall return to the matter later if you show any disposition to temporize or to evade your distinct obligation.

“ Tours, truly,

“ C. H. Pabkhubst,

T. D. Kenneson,

“ Fbank Moss,.

. “ Executive Committee.”

Rooms oe the'

Society fob tHe Peevention of' Cbime,

United Chaeities Building.

“ Saloons which are frequented by prostitutes:

Wolfers’, 72 University place.

Stevenson’s, S. W. corner Thompson and West Third ■ streets.

Monell’s, 121 West Third street.

The Golden Swan,’ S. E. corner Sixth avenue and West Fourth street. ‘

“ Houses of prostitution: •

204 Thompson street.

230 Wooster street.

127 West Third street (rear).

224 Wooster street.

141 West Third street.

134 West Third street.

“ Houses of assignation:

48 Great Jones street.

52 Bond street.

54 Great Jones-street.

Daly’s Hotel, 50 East Thirteenth street.

12 East Thirteenth street.

69 West Tenth street.

Hotel St. Lawrence, 30 East Thirteenth stredt.

.82 West Third, street.

■ -230 Thompson street.

Hotel Jerome, S. W '■ corner Twelfth street and University place. •

245 Wooster street; 132 Macdougal street.

■■ 210 Thompson street.

: 209 Wooster street. :

. 14 East Thirteenth street.”' " . ■

The letter received by the board, on May thirteenth was as-follows: '

"• “ Hew York,-ATcm/ 11th, 1895. .

“ Theodore Roosevelt,.

Chairmam, Board of Police Commissioners,

New Yorh City:

“Dear Sir.^—Accompanying this please find copies of papers which, as representing the Society for the Prevention 1' of Crime, we have to-day sent to the Mayor, the Superintendent. - .of Police and to the Captain of the Fifteenth Precinct.

“ With assurances of our cordial support in the work so-recently devolved upon you, we are,

■ “ Yours very truly,

•“ C. H. Parichurst,

- “ T. D. it'ENNESON,

“Frank Moss, ■'< ' ■ ■

Executive Committee.

“Rooms of the

Society for the Prevention of Crime,

United Charities Building.” . ■ •

On the date of the receipt of these papers the board referred' ■ the subject to one of the commissioners (Parker) to formulate ■the charges contained in them- more in detail, and obtain evidence'-in support of such, charges. Commissioner Parker thereupon on the same day (May thirteenth) had an/interview with the acting superintendent of the Society for the Prevention of Crime, and requested him to produce evidence in support of the charges.’ On the fourteenth the latter produced to Commissioner Parker voluminous evidence, and on the fifteenth the commissioner requested the attorney for the society to put the charges in more detailed form, and the attorney thereupon took the matter in charge. Such was the condition of affairs when, on the eighteenth, Captain Eakins made his application to be retired, and the sole question is whether at that time, in the sense of the statute, charges were pending against him. On the twenty-second and twenty-third of May the relator was informed by- Commissioner Parker of the charges against him, and that they were being looked into. On the twenty-seventh the charges in detailed form and verified were brought before the board, and the relator’s application for retirement was denied. On the twenty-eighth the charges were put into another form, according to a system of the department, by superadding to the charges made by the citizens a charge in-form by a commanding officer of the force. In that form they were served upon the relator on May twenty-eighth.

It seems impossible to answer the question submitted upon this appeal except in the affirmative, and. there is little to add to the careful opinion of the learned justice at Special Term, who held that charges were pending against Captain Eakins at the time of his application and that his petition for mandamus to compel the police board to- relieve him and place him upon the pension roll must be denied. .The objections to this conclusion, .it seems to me, are based not upon substance, but upon words and the technical meaning of “ charges ” and “charges pending.”

The accusation of neglect of duty and inefficiency against the captain had been made by responsible citizens, directly to him and to his superior officer, and to the board whose duty it was to take cognizance of such allegations. It was after receipt of those accusations in writing that the relator applied for retirement, and this, it seems to me, is exactly what the legislature intended to prevent, namely, resignation under charges: In considering ■ whether sueh accusations so made were pending charges,” Judge Bisohobb has referred to the authorities holding that the words of a statute, if of common use, “ are to be taken in their natural, plain, obvious and ordinary signification ”' (People ex rel. Bockes v. Wemple, 115 N. Y. 302; Polhemus v. Railroad Co., 123 id. 502), and that where words have two significations the popular' one should have the preference. Suth. Stat. Const. §§ 247, 258, 357.

It- has been held that the expression “ charged with crime ” signifies that legal proceedings have been commenced by complaint or indictment (State v. Duncan, 5 Port. (Ala.) 260 ; Day v. Inhabitants of Otis, 8 Allen (Mass.), 477; Mary v. State, 5 Mo. 71); and', that charges ” signifies ■ an accusation made in a legal manner (Tompert v. Lithgow, 1 Bush [Ky.], 176); and implies an original complaint in the first instance preliminary to a formal trial for a crime; Ryan v. People, 79 N. Y. 598.

.What is the legal manner of accusing a police officer before the police board ? What constitutes an original complaint in the first instance in such "a prosecution? - The statute prescribed nothing more'than that charges must. be “ written.” Consol. Act,'§ 250. .Nq particular form is prescribed or" required. It is not required that more should be done than to'specify the offense by any language which conveys that information and enables the- accused to prepare for trial. People ex rel. Donovan v. Fire Commissioners, 77 N. Y. 153-155. The police board is not a court, and the same formalities in its ’ procedure as im,ordinary tribunals of criminal* jurisdiction' are not required. A general charge is sufficient to answer the' purpose intended. People ex rel. Flanagan v. Fire Commissioners, 93 N. Y. 97. No particular rules of procedure govern the police board; they may proceed in their investigation in any manner they choose. People ex rel. Weston v. McClave, 123 N. Y. 512. In order that the discipline, efficiency and utility of the police force. may be maintained, and those unfit for such duties may be removed, the law should be construed liberally, with a view to accomplish the purpose intended. People ex rel. Lee v. Doolittle, 44 Hun, 293.

Having in view these requirements, the letter addressed by the society to Captain Eakins and transmitted by it to the board as above described were written charges within the statute, if the communication specified an offense in plain language which enabled the accused to meet the accusation. There can be nó doubts that an offense was so described and specified as to leave no room for question. He was told that a number of vicious resorts were conducted in open and flagrant violation of law in his precinct, presumably with his knowledge and by his connivance, and a list of them was given with a statement of their charactér, and he was charged substantially with neglect of his duty as a police captain in harboring suck resorts of viciousness which were so gross and open that his precinct then was and had long been a disgrace to the department. The fact that the captain concluded to demand his retirement from the force within five days after receiving the society’s letter is evidence that the charges were . sufficiently specific and fully understood.

The board might undoubtedly, therefore, have acted upon those charges and cited the accused to answer them;' but although they were received by the board on the thirteenth, the same day that they were sent to the captain, he was hot summoned to answer until after his application for retirement on the twenty-fifth. Were these charges pending at the time of such application ? It is contended on his behalf that until notice had been given to the accused by the board, or he had been cited to answer, there were no charges pending against him. But notice to the accused is only one step in-the pendency of such a prosecution. The first step is the presentation of charges to the board; the next may be notice from the board to the accused, or may be reference of the . complaint to counsel, or committee, to be formulated. In any case'the proceeding is commenced when the written accusation subscribed 'by the complainant is presented to the board.in any form of which it must take notice, and after the proceeding was commenced it is pending until - terminated. Suppose-that the statute forbade the commissioners to retire an officer against whom charges were pending, could the commissioners,, after • receipt of charges, postpone notice to the accused in order to accept his application for retirement without violat- , ing the statute ? If not, could the accused, tailing advantage-of the delay necessary for formulating the charges .already presented, interpose his application and defeat the statute f' That is the case here,-and, inasmuch as the statute does snip . stantially forbid the retirement of- an officer while charges are pending, I do not see how the commissioners themselves could, escape accusation of breach of duty .had they disregarded, the complaint made by the society and retired .the relator upon his subsequent application.

■ The order appealed from should- be affirmed: ,

" Bookstaver and Pryor, JJ., concur.

Order affirmed.  