
    WILLIAM EISBERG, PROSECUTOR, v. MAYOR AND COUNCIL OF THE BOROUGH OF CLIFFSIDE PARK AND JOSEPH J. COHN, RESPONDENTS.
    Submitted December 5, 1918
    Decided February 19, 1919.
    A trial of a policeman for delinquency, in which, of the six councilmen who heard the case, one preferred the charges and three of the remaining members were called as witnesses aginst him, one of whom heard only a portion of the testimony, is not a “fair trial” under the express language of chapter 152 of the laws of 1917.
    On certiorari.
    
    Before Justices Parker and Minturn.
    For the prosecutor, Mackay & Mackay.
    
    For the respondents, Arthur M. Agnew.
    
   The opinion of idle court was delivered by

Minturn, J.

The writ of certiorari in this ease was sued out for the purpose of reviewing the proceedings of the borough council in dismissing the prosecutor from the police force, for general disobedience and insubordination and inefficiency, the details of which were alleged in certain charges preferred against him in a written complaint.

He was entitled under the express language of the act of 1917, chapter 152, to “a fair trial” upon the charges preferred against him. Tie was convicted by a vote of four to two of the council. Of those voting in the affirmative one councilman preferred the complaint against him and three councilmen were called as witnesses against him. One of the councilmen who, under the theory of a fair trial required by the mandate of the statute, was supposed at least to have heard the testimony upon which he was called upon to base his judgment, was not present at the first hearing, and, consequently, heard none of the testimony presented at that session. He, subsequently, was called as a witness against the prosecutor and eventually assisted in determining the inquiry adversely to the prosecutor. It is hardly necessary- in considering the legislative prerequisites of a fair trial to say more than that it is obvious that this proceeding did not conform to the recognized rules governing such procedure. A fair trial, in the generic language of Mr. Webster in the Dartmouth College Case, 4 Wheat. 518, 581, is a proceeding “which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial.” Specifically, it is held to be that a hearing shall be accorded to the alleged delinquent by an impartial and disinterested tribunal. 2 Abb. Mun. Corp. 1663; Pinkermann v. Rusling, 64 Conn. 517; Streeter v. Worcester, 177 Mass. 29.

The rule is fundamental that a person who has not- heard the testimony in a given case occupies no legal status as arbiter or judge to adjudicate upon the cause.

This infirmity was accentuated by the fact that the police rules of schedule of alarm calls for failure to' comply Avith which he was adjudged guilty, were not introduced in evidence, and this omission presents a clear failure of proof in the case to sustain the conviction.

The resolution in question will be set aside.  