
    The People ex rel. Patrick McAleer, App’lt, v. Stephen B. French et al., Resp’ts.
    
      (Court of Appeals,
    
    
      Filed March 11, 1890.)
    
    1. Municipal corporations—Police—Intoxication.
    Relator, a police officer, was to go on duty at 8 o’clock and just before that, not having any breakfast, his wife went to the corner grocery and brought him some brandy in a tumbler, and fearing that he would become sick insisted upon his drinking it, which he did, and while at his post at noon, being still afraid he would become sick, she took more brandy to him, which he drank and at 1:30 p.m., went to the station house, fell on the floor intoxicated, and lay there an hour. Held, that the police commissioners were justified in drawing the inference that the intoxication was voluntary and blamable.
    2. Same—Extent of punishment.
    The extent of the punishment rested entirely in the discretion of the commissioners and neither the supreme court nor this court has any jurisdiction to interfere therewith.
    3. Same.
    It is the duty of the supreme court in all this class of cases, not only to inquire whether there is any competent proof tending to establish the guilt of the accused officer, but it must look into the evidence, and if it finds a preponderance of evidence against the determination of the commissioners then it has the same jurisdiction to reverse the determination that it has to set aside the verdict of a jury as against the weight of evidence.
    
      i. Same.
    If it should appear that the officer was by force compelled to drink intoxicating, liquor or that he had taken it when it was so‘disguised that he did not know its character, or in good faith when it was prescribed by a physician for some bodily ailment, and that thus he became intoxicated, no blame could attach and he could not be convicted or dismissed from the force for such intoxication.
    (O’Brien, J., dissents.)
    Appeal from order of supreme court, general term, first department, dismissing writ of certiorari to review dismissal of relator.
    
      Edward T. Wood, for app’lt; D. J. Dean, for resp’ts.
   Earl, J.

The members of the police force of the city of ¡New York have a permanent tenure of office, and they cannot be dismissed from the force for any fault or misconduct until after charges have been preferred against them and such charges have been examined, heard and investigated as provided in the statutes and the rules adopted by the board of police commissioners. The following is one of the rules adopted by that board:

“ Any member of the police force may be punished by the board of police in their discretion, either by reprimand, forfeiture and withholding pay, not exceeding thirty days for any one offense, or by dismissal from the force on conviction of either of the following offenses, to witAmong the offenses specified are intoxication, neglect of duty and conduct unbecoming an officer.

We are dealing in this case with the offense of intoxication, as that was the charge made against the relator. Before a police officer can be dismissed from the force for intoxication, it must be shown that the intoxication was of such a character as to be an offense against the rules; that it was conscious, voluntary, blamable and in some way due to his fault. In the absence of any other proof, or of any explanation, the mere fact of intoxication might establish the offense, because it would have to be assumed that the officer voluntarily brought himself into that condition. But if it should appear that the officer was by force compelled to drink intoxicating liquor, or that he had taken it when it was so disguised that he did not know its character, or in good faith when it was prescribed by a physician for some bodily ailment, and that thus he became intoxicated, no blame would attach to him, he would be guilty of no offense, and would in no way be in fault; and then he could not be convicted or dismissed from the force on account of such intoxication.

In People ex rel. Masterson v. French, 110 N. Y., 494; 18 N. Y. State Rep., 231, we held that upon the undisputed evidence the relator was guilty of the intoxication charged, that it was voluntary and that he was in fault, and to blame for it, that the extent of the punishment for it rested in the discretion of the police commissioners, and that the supreme court had no jurisdiction to interfere with their determination as to that. We, therefore, reversed the decision of the supreme court in this case and affirmed that of the commissioners.

In the recent case of People ex rel. Hogan v. French, ante, 67 we held upon the undisputed facts that the intoxication was occasioned under such circumstances as to show that the relator was in no sense blamable therefor, that he had committed no offense and was not in fault and could not, therefore, properly be convicted and dismissed from the force. And thus while those cases are in a certain sense analogous they are not alike and are plainly distinguishable upon the grounds stated in the opinion of Finch, J., in the latter case.

Here we think there was sufficient" evidence to authorize the police commissioners to find that the relator was guilty of the intoxication charged, in the sense that it was voluntary, and that he was in fault and to blame for it. It appears that on the 13th day of October, after being on duty until five o’clock F. M., he went home and then moved his household goods from the house where he was then living into the adjoining house, and that afterward he again went on duty and came home in the night and settled his house and went to bed. It does not appear at what hour he got up the next morning. But he was to go on duty at eight o’clock, and just before that, not having had any breakfast, his wife went to the corner grocery and got some brandy in a tumbler and brought it to him, and fearing he would become sick insisted upon his drinking it, which he did. He then went upon duty, and while at his post, between twelve and one o’clock, she being still afraid he would become sick took some more brandy to him, which he then drank, and about half after one he went to the station house and fell down on the floor and was found there intoxicated, and remained so for the better part of an hour.

It does not appear that he had ever been advised by any physician to take brandy for any ailment, or that he had any physical ailment, except that he testified that he was sometimes dizzy headed. Why in the morning did he take brandy instead of food? It would appear from the hour at which he went on duty that there was abundant time to procure food, and there does not appear to have been any necessity for his taking brandy to sustain his strength or fit him for duty. Again, instead of carrying him brandy between twelve and one o’clock, why did not his wife take him food? Or why did he not get it, and if he had no time to get it, why did he not send her for it? There seems to have been no good reason for Ms taking two drinks of brandy upon an empty stomach. It does not appear that he had any reason to suppose that the brandy would be good for him, or that he needed it, or that there was any exigency requiring him to take it. He took it knowing, as we must assume, its intoxicating nature, and he took the chances of intoxication, without, so far as appears, any excuse therefor. It does not furnish him an adequate defense that he took the brandy upon his wife’s advice. He was bound to exercise his own judgment, and must stand as if he had voluntarily procured the brandy himself, his wife’s connection with it being simply a mitigating circumstance.

We think, therefore, this case is unlike the Hogan case, and that it is more like the Masterson case. Here there was evidence from which the police commissioners could justly draw the inference that the intoxication of the relator was voluntary and blamable, and therefore we cannot interfere with their determination affirmed as it has been by the supreme court. The case is one which appeals strongly to our sympathy. The police commissioner who took the evidence stated that the relator’s record was a good one. It appears that he had been on the force eighteen years, and had served in the same precinct nearly seventeen years, and the sergeant in command of the precinct testified that he was an “A Ho. 1” officer; 'that he had never seen him under the influence of liquor, and that he was a faithful and good officer.

A roundsman testified that he was a good officer; that he never knew him to drink anything; that he had the reputation of being a temperance man, and that he was never more ‘surprised than when he saw him in a condition of intoxication. The relator testified that he was never in the habit of drinking; that he had been asked to drink, and always refused. Taking the case as it appears to us, it was certainly a very severe punishment to dismiss the relator from the police force where he had so long and faithfully served. But the extent of the punishment rested entirely m the discretion of the commissioners, and neither the supreme court nor this court has any jurisdiction to interfere therewith.

We think the force and effect of the decision in the Master son case has been somewhat misapprehended. In determining the guilt of a police officer who is on trial for charges preferred against him, the police commissioners cannot act upon their own knowledge. The charges must be tried upon evidence, and the guilt must be established by evidence produced before the commissioners upon the trial. They can neither act upon their own knowledge nor supplement the evidence by their own knowledge. But in inflicting the punishment they may take into consideration the evidence, as well as their own knowledge of the police officer, and inflict such punishment, authorized by the rules and the statutes, as in their judgment the case, in view of all the circumstances, requires. We did not determine in that case that the supreme court, upon certiorari, did not have jurisdiction to review the determination of the police commissioners upon the evidence, and it is a mistake to suppose that if there is any evidence in the record brought to the supreme court by certiorari sustaining the determination of the commissioners, that court has no right to interfere therewith. Such is the rule in this court, and such was the rule at common law. But now by § 2140 of the Code of Civil Procedure, upon the hearing on the return of a writ of certiorari, the supreme court may inquire whether there was any competent proof of all the facts necessary to prove in order to authorize the making of the determination, and if there was such proof 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 a jury, would be set aside by the court as against the weight of evidence.”

Therefore in all this class of cases it is the duty of the supreme court not only to inquire whether there is any competent proof tending to establish the guilt of the accused officer, but it must look into the evidence, and if it finds that there is a preponderance of evidence against the determination of the commissioners, then it has the same jurisdiction to reverse the determination that it has to set aside the verdict of a jury as against the weight of evidence. It is the purpose of the law to give a review in the supreme court by certiorari, not only upon the law, but upon the evidence, to the extent specified in the statute, and every party who seeks such a review is entitled to the fair and judicious exercise of that jurisdiction.

We do not perceive that the relator’s right to call witnesses and have them, sworn in his behalf upon his trial was denied or curtailed by the police commissioner who took the evidence.

We are, therefore, constrained to affirm the order, but, under the circumstances, it must be without costs.

Andrews, Finch and Peckham, JJ., concur. Gray, J., concurs because he can see no reason for distinguishing this from the Hogan case, in which he stated his reasons for dissenting from the prevailing opinion, and he, therefore, concurs in the result reached by Earl, J., here. For the same reason Ruger, Ch. J., concurs. O'Brien, J., dissents. 
      
       Affirming 25 N. Y. State Rep., 536.
     