
    The People ex rel. Michael Brady, App’lt, v. James J. Martin et al., as Commissioners, etc., Resp’ts.
    
      (Court of Appeals,
    
    
      Filed March 12, 1895.)
    
    1. Municipal corporations—Police—Pension.
    The amendment of 1885 to § 807 of the Consolidation Act did not take away all discretion from the board of police, and, upon an application of a member of the police force who has served twenty years, such board is not, under all circumstances, bound to adopt a resolution dismissing him from the force and placing him upon the pension roll.
    
      2. Same.
    There is not an unlimited and unreviewable discretion vested in such board to act in an arbitrary or wholly unjustifiable manner in refusing to adopt such resolution.
    3. Same.
    It is the duty of the board to grant such resolution when the facts, upon which the right of the policeman to make it, are made reasonably clear.
    4. Same.
    When grave charges of misconduct are preferred immediately after the application for retirement is made and before it is acted upon by the board, the board has the right, before proceeding to act upon the application, to investigate such charges ; and, if it appears, upon such investigation that the charges are not simply the result of malice nor stale, but are true in fact and also of such a nature as would authorize the board, upon conviction, to dismiss the offender from the force such board is entirely justified in convicting and dismissing him, and such dismissal will furnish a conclusive reason for the denial of the application to place the officer upon the pension roll.
    Appeal from -order of the general term of the court of common pleas for the city and county of New Y ark, which affirmed an order of special term denying an application by the relator for a peremptory writ of mandamus.
    The relator herein applied to the special term of the court of common pleas for a mandamus to compel the defendants, who are the commissioners of police of the city of New York, to adopt a resolution relieving and dismissing him from the police force and placing him upon the roll of the police pension fund, according to the provisions of section 307 of chapter 410 of the Laws of 1882, and the act amendatory thereof. The application was denied, and from that order denying the application the relator appealed to the general term, which affirmed the order, and from the order affirmance he has appealed to this court
    It appears by the papers that the relator, on the 4th day of January, 1894, had been a member of the police force of the city of New York, and had done duty thereon for a period of a little more than twenty years, and on that last-mentioned day he made an application in writing to the board of police commissioners to be relieved and dismissed from the force and placed upon the roll of the police pension fund, and he stated that at the time such application was made, there were no charges of misconduct pending, nor had any been preferred against him, and he alleged in bis affidavit that the board of police commissioners had held several meetings since his application was presented to them, and they had failed and neglected to act thereon as required by law. On the 12 th of January, 1894, he gave notice to the defendants in writing, and therein demanded that they take immediate action upon his application, and that in case of their failure to pass the resolution as required by law at the next meeting of their board, he notified them that he should apply for a peremptory writ of mandamus to compel them to take such action. He further stated that on the 12th of January, 1894, and subsequent to the service of -the above-mentioned demand upon it, the police board held a meeting and neglected and refused to comply with the demand, and denied his application and refused and neglected to comply therewith up to the time of the making of his affidavit, which was January 13,1894. He also stated that since making his application to be retired there had been preferred to the defendants as the board of police certain malicious and false charges by certain persons inimical to him, which charges were set down for hearing before it on Wednesday, January 17, 1894, and he alleged that upon such charges the board ‘‘threatened to find deponent guilty and dismiss him from his said office therefor.’’ He, therefore, asked that a writ of mandamus should be granted and that all proceedings upon the part of the board in connection with the charges above mentioned should be stayed until the final determination of his application for such mandamus.
    Upon the hearing before the special term an affidavit of one of the defendants was read, in which it was admitted that the relator had made written application to the board for retirement on the 4th day of January, 1894. It was alleged, however, that on the next day, January 5th, 1894, when the application of the relator came before the board of police for action, there had been filed with the board by the superintendent of police three separate charges of serious misconduct on the part of the relator, copies of which charges were annexed to the affidavit. It was further shown that the defendant board held over any action on the application of the relator until it could investigate these charges, and that the investigation thereof was set down for hearing before the board on January 17, 1894, but that such hearing was prevented by the granting of the order to show cause by the special term staying all proceedings in relation to any charges until the decision of the application for the mandamus and the removal of the stay. It was further alleged in the affidavit that it was the intention of the board to proceed promptly with the hearing of these charges against the relator as soon as the stay should be removed, and as soon as the charges should be investigated the board would promptly proceed to consider the application made by him for his retirement
    The charges, which were annexed to the affidavit, charged that the relator on the 30th of September, 1892, asked and received from the person named in the charge a sum of $75 as part of the consideration for securing his appointment on the police force in the city of Hew York ; also that in the year 1889 the relator arrested a man, whose name was given, for a violation of the Excise Law, and in consideration of the sum of $25 received by him from the person arrested, relator allowed such person to go at large and neglected to convey him to the station house: also that the relator in the early part of the year 1890 received from a person named the sum of $75 as part consideration for securing his appointment on the police force of the city of Hew York, which relator did not pay back until compelled to do so.
    
      Louis J. Grant, for app’lt; David J. Dean, for resp’ts.
   Peckham, J.

By section 307 of chapter 410 of the Laws of 1882, commonly called the Consolidation Act relating to the city of Hew York, it was provided that any member of the police force who had performed duty for a period of twenty years or upwards, might “ in the discretion of the board of police, by resolution, unanimously adopted by a full board, be retired from service and placed upon the police pension roll.” This provision of course manifestly and in terms vested a discretion in the board of police in regard to the adoption of the resolution. The law stood in that condition until 1885, when, by chapter 364 of the laws of that year, the section was amended so as to provide that any member of the police force who has performed duty therein for a period of twenty years or upwards, upon his own application in writing, “shall, by resolution, adopted by a majority vote of the full board, be relieved and dismissed from such force and service and placed on the roll of the police pension fund, and awarded and granted, to be paid from said pension fund, an annual pension during his lifetime of a sum of not less than one-half the full salary or compensation of such member so retired; provided, however, that no pension granted under the provisions of this' section shall exceed the sum of one thousand dollars per annum, except,” etc., the provision following being immaterial to the case before us. The question for our determination is whether, by this amendment, all discretion was taken from the board of police, and that upon an application of a member of the police force who had served for twenty years the board was bound, under all circumstances, to adopt a resolution dismissing him from the force and placing him upon the pension roll. The relator claims that the board had no discretion except to determine the fact whether he had served the requisite length of time, and to decide upon the amount of the pension to which he might be entitled. The defendants contend that by the terms of the provision they are not bound at all events to pass the resolution, but that it is subject to a discretion in such board, to be reasonably and fairly exercised upon the merits of each application.

We think that by the amendment the members of the police board were not entirely divested of all discretion in regard to the adoption of the resolution retiring the applicant, and that the board was not bound to grant the application upon the mere fact that' he had served twenty years upon the force. The effect of the amendment was to eliminate the necessity of a unanimous vote of the full board for the adoption of the resolution retiring the applicant. We cannot see how proper effect can be given to the language which requires a majority vote of the full board for the adoption of the resolution, unless some discretion is vested in the members of the board upon the subject. The act does not assume to dictate to the members how they shall vote upon the resolution. It does require for its adoption a majority vote of all the board. One member may, therefore, vote against it Which one shall it be? No more power is given to one member than to another to vote against it, and in voting against it the member who does so uses his judgment and discretion. Judgment and discretion béing given to some member of the board, how can it be said that it is not given to all? If two members should vote-against the resolution and resort to the courts must be had for the purpose of compelling the adoption of the resolution by a majority vote, how should the order of the court be enforced ? Each member of the board might claim that he had the right under the statute to vote against the adoption of the resolution according to the dictates of his honest judgment, and bow could the court single out any one of the four members and allow him to use his judgment, while denying that right to the other three? Or, if the language of the statute were to be used in the order of the court and the board should be directed as a body to adopt the resolution by a majority vote, ought any member of that board to be proceeded against as for a contempt in using his judgment and voting against the resolution? The court has no power under this statute to direct that all the members shall vote for it; and, if not all, which three of them shall it direct? And howcanitbe said that anyone has violated the statute or the order of the court when he has but exercised his discretion and judgment and refused to vote for the adoption of the resolution ? From the very language of the section-it seems to us that some discretion is vested in the members of the board. If the legislature intended otherwise, and that the resolution should be passed at all events when the fact of the twenty years’ service was ascertained, it seems to us clear that other and different and plainer language would have been employed. The board has been invested with authority to retire the applicant by a majority vote of the full board, but as no direction has been given requiring the members to vote for the adoption of the resolution, it follows that they must be at liberty to vote in favor of or against such application.

This question was decided in the same way we now decide it in the case of People ex rel. Bolster v. French, by the general term of the first department, which case is reported in 46 Hun, 232 ; 11 St. Rep. 551, and we agree with the reasoning adopted by Judge Daniels in delivering the opinion of the court in that case. The learned judge at special term in this case took the same view and for the same reasons. The case of People ex rel. Tuck v. French, 108 N. Y. 105 ; 13 St. Rep. 89, while not determining the question, looks in the same direction. We do not mean by this construction of the act to say that there is in all cases an unlimited and unreviewable discretion vested in the members of the board of police to act in an arbitrary or wholly unjustifiable manner in refusing to adopt the resolution, being guided by their own arbitrary will and discretion. The discretion is a judicial one, to be exercised reasonably and fairly upon the application of the policeman for retirement. Generally, it would appear to be the duty of the board to grant such application when the facts upon which the right of the policeman depended to make it were made reasonably clear. But where grave charges of misconduct have been preferred- immediately after the application for retirement has been made, and before it has been acted upon by the board, we think the board has the right, before proceeding to act upon the application, to investigate such charges, and if it appear upon such investigation that the charges are not simply the result of malice, and are not stale, and are true in fact, and are also of such a nature as would authorize the board, upon conviction, to dismiss the offender from the force, then such board would be entirely justified in convicting and dismissing him, and the dismissal would furnish a conclusive reason for the denial of the application to place the officer upon the pension roll. It would be the duty of the board to act with reasonable promptness upon the charges preferred against an applicant, and it must be assumed it would also act upon them in entire good faith and with a desire to honestly discharge its official duty.

We are of the opinion that the courts below have properly construed the section in question, and the order appealed from should, therefore, be affirmed, with costs.

All concur.

Order affirmed.  