
    The People, ex rel. Robert Kopp, Appellant, v. Stephen B. French et al., Commissioners of Police of the city of New York, Respondents.
    The “offense of intoxication” created by the Excise Law (§ 17, chap. 628, Laws of 1857, as amended by chap. 856, Laws of 1869), is a crime within the meaning of the New York Consolidation Act (§ 268, chap. 410, Laws of 1882), which prohibits any person who has “ been convicted of any crime ” from being appointed to membership on the police force or from holding membership therein.
    An investigation by the board of police commissioners to determine whether a member of the force has been convicted of a crime is not within the provision of said Consolidation Act (§ 250, chap. 410, Laws of 1882, as amended by chap. 180, Laws of 1884), which prohibits the removal of a member ‘ ‘ until written charges shall have been made or preferred against him. When it comes to the knowledge of said commissioners that a member has been convicted of a crime and so is ineligible, they have the right summarily to vacate his appointment, discharge him from the force and refuse longer to recognize him as a member.
    
      It seems that if the commissioners should wrongfully dismiss a member of the force because of an alleged conviction of a crime, he would have his remedy, by mandamus, for restoration.
    The relator was removed from the police force because of a conviction prior to his appointment for intoxication; no written charges were preferred, but he appeared before the board in compliance with its request, with his counsel, who stated that they admitted the relator had been arrested and fined in a police court, but denied that there had ever been a conviction for a crime, and without objection because of the absence of written charges the relator proceeded to trial upon the merits. Held, that conceding the provision of said Consolidation Act as to written charges was applicable to the case, it might be and was waived by the relator.
    (Argued June 2, 1886 ;
    decided June 22, 1886.)
    Appeal from order of the General Term of. the Supreme Court, in the first judicial department, entered March 9,1886, which affirmed upon certiorari the proceedings of the board of police commissioners of the city of Flew York, removing the relator from the position of policeman. (Eeported below, 39 FT. Y. 507.)
    The facts appear sufficiently in the opinion.
    
      John E. Burke for appellant.
    The board of police had no jurisdiction to try or remove the relator for the reason that no written charges were preferred against him. (Laws of 1882, chap. 410, § 250, as amended by Laws of 1884, chap. 180; People, ex rel. Miller, v. Police Com'rs, 67 N. Y. 475.)
    
      David J. Dean for respondent.
    The relator is disqualified by statute to be appointed to membership in the police force, or to continue to hold membership therein. (Laws of 1882, chap. 410, § 268.) Intoxication.in a public place is a crime, and a conviction thereof is a conviction of a crime. (Laws of 1869, chap. 856, § 17; E. S. [7th ed., Banks] 1982 ; E. S. [7th ed.] 2539, § 32; Laws of 1881, chap. 676, § 3.) The appointment of the relator to membership in the police force was forbidden by the statute, and consequently he never acquired legal title to the office of patrolman. (Laws of 1882, chap. 410, § 272.) The right to a preliminary injunction rests in the discretion of the court, and, therefore, an appeal will not lie from an order granting or refusing an injunction pendente lite. (Paul v. Munger, 47 N. Y. 469 ; People v. Schoonmaker, 50 id. 499 ; Pfohl v. Sampson, 59 id. 174; Calkin v. Man. Oil Co., 65 id. 557.) The general rule thus defined has been qualified only to the extent of holding that where it clearly appears that the complaint shows no cause of action, a preliminary injunction is unauthorized, and the granting of it is an error which may be reviewed in this court on appeal. (Selschow v. Baker, 93 N. Y. 62; McHenry v. Jewett, 90 id. 58.) The case at bar is not within the exception, because it is an -appeal from a denial of the motion for an injunction. (Rae v. Mayor, etc., 62 N. Y. 631; Young v. Campbell, 75 id. 525.)
   Earl, J.

Section 268 of the New York Consolidation Act (Chap. 410 of the Laws of 1882) provides that no person shall ever be appointed to membership in the police force or permitted to hold membership therein, or be appointed a patrolman “ who shall have been convicted of any crime.” Eobert Kopp, the relator, was, on 12th of April, 1880, arrested for public intoxication in the city of New York and taken before a police justice and there charged with such intoxication, and convicted thereof, and fined $5, which fine he paid. There- • after, in July, 1883, he applied to the board of police commissioners to be appointed a patrolman of the police force in the city of Hew York, and, in answer to questions put to him, stated that he had never been arrested for or convicted of any crime; and he was thereupon appointed patrolman. Subsequently, in October, 1885, it having come to the knowledge of the police commissioners that he had been convicted of the alleged crime, they passed the following resolution : Resolved, That Patrolman Robert Kopp, 22d prpcinct, be directed to appear before this board on the 30th inst. at 12 m., and that the attendance of Knox McAfee, clerk 2d district police court be requested.” In pursuance of that resolution Kopp was requested to appear before the board on the thirtieth of October, and he appeared there with his counsel, and his counsel, at the opening of the proceedings, stated as follows: “ If your honors please, I appear for the defendant, and we have to say this, that although we admit here that the officer has been arrested and fined in a police court, we now contend that there has never been a conviction of any crime.” It thus appears that the relator was informed of the charge against him and understood perfectly the purpose for which he had been summoned to appear. It was clearly shown by.the examination of the relator and other evidence that he was arrested and duly convicted of being intoxicated in a public place, and that he was fined $5 and paid the fine. Thereupon the board resolved that the name of Robert Kopp be stricken from the roll. of the police department and force, and that the superintendent be directed to issue the necessary order for the return of his shield and manual, and to not allow him to perform any further duty as patrolman.” It is now claimed that the action of the board was illegal for three reasons.

First. It is said that they had no jurisdiction to try the relator and discharge him from the police force without written charges; as required by section 250 of chapter 410 of the Laws of 1882,' as amended by chapter 180 of the Laws of 1884, which provides that no member of the police force “ shall be fined, reprimanded, removed, suspended or dismissed from the police force until written charges shall have been made or pre-. ferred against him.” This is not, we think, such a case as is contemplated by that section. Kopp was not legally a member of the police force. He was ineligible; the police commissioners had no right under the statute to appoint him; and when it came to their knowledge that he had been convicted of a crime, and was, therefore, ineligible to the office, they had the right summarily to vacate his appointment, discharge him from the police force, and refuse longer to recognize him as a member thereof.

This was not a case in which the commissioners were authorized or required to try or discipline Kopp for any offense committed by him as a member of the force, but it was simply an investigation to ascertain whether he was legally a member of the force, and that was an investigation to be conducted by them in their own way. If they should thus wrongfully dismiss a police officer, he would have his remedy for restoration by mandamus.

But if our views were different, we would still reach the same conclusion. The provision in the section above quoted, requiring written charges to be' made against a police officer before he can be punished or discharged from the police force, is made for the benefit of the officer, and it may be waived by him. In this case the relator appeared by his counsel, understanding perfectly the charge which was to be investigated, and proceeded to trial upon the merits, in no way making objection that written charges had not been preferred against him. Under such circumstances we think he clearly waived the presentation of written charges, and that it is now too late for him to make this objection.

Second. It is claimed that Kopp was not convicted of any crime. The offense for which he was convicted is created by section 17 of the Excise Act of 1857, as amended by chapter 856 of the Laws of 1869, which declares it to be the duty of every officer, whenever he shall find a person intoxicated in any public place, to apprehend such person and take him before some police magistrate, whose duty it shall be to try him for such offense; and upon his conviction by the magistrate of such offense it is declared that such person shall be fined not less- than $3 nor more than $10, in the discretion of the magistrate trying him ; and provision is made for his imprisonment in case the fine is not paid. The section then proceeds, “the offense of intoxication being hereby declared to be an offense against the provisions of this act, and punishable as above provided, it shall be the duty of such officer to arrest or cause to be arrested all such persons found so intoxicated, and of the magistrate to entertain such complaint and to make such examination, under a penalty of $50, with full costs of suit for any neglect to comply with the provisions of this section.” The relator was, therefore, legally arrested for the “ offense of intoxication,” and the question for our determination is, was such an offense a crime ?. It certainly has all the elements of a crime. Public intoxication is-offensive to public decency, and dangerous to the good order and well-being of society. The officers charged with the arrest of other criminals are empowered to arrest persons guilty of this offense, and they are required to be tried as criminals and punished as criminals. Public intoxication is declared to be an offense, and, in the statutes, ordinarily the words “ offense ” and “ crime” are synonymous. Various violations of the Excise Act are made crimes punishable as misdemeanors, and yet in the act they are always called offenses. In the Revised Statutes it is declared that the words “ crime ” and “ offense,” when used in the statute, “ shall be construed to mean any offense for which any criminal punishment may by law be inflicted ” (3 R. S. [7th ed.], § 32, p. 2539); and in the Penal Code, § 33, a crime is defined as follows : An act of omission forbidden by law and punishable upon conviction,” among other ways, by “ a fine.”

So, taldng the manner in which this offense is required to be dealt with, and the language used in the statutes in reference thereto, we are of opinion .that public intoxication, under the-Excise Act of 1857, as subsequently amended, is a crime, and, therefore, that the defendant was convicted of a crime which made him ineligible to the office of patrolman in the police force.

Third. It is further claimed that there was no competent evidence before the board to show that the relator was lawfully convicted. The evidence was sufficient to show that the police magistrate had jurisdiction of the offense, and that, therefore, the conviction was legal.

The order should be affirmed.

All concur.

Order affirmed.  