
    The People of the State of New York ex rel. James P. Tucker, Relator, v. Theodore Roosevelt and Others, as Police Commissioners, Composing the Board of Police of the Police Department of the City of New York, Respondents.
    
      Police force—what intoxication will not justify the dismissal of an officer.
    
    The fact that a police officer, while seriously- ill, took, by the advice of his family physician, small quantities of champagne, which, together with the conditions of his malady, gave rise to apparent symptoms of intoxication, does not warrant his dismissal from the police force on the ground of intoxication.
    Certiorari issued out of the Supreme Court and attested the 21st day of April, 1897, directed to Theodore Roosevelt and others, as police commissioners, composing the board of police of the police department of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings relating to the dismissal of the relator from the police department of the city of New York.
    
      Joseph Rosensweig, for the relator.
    
      Terence Farley, for the respondents.
   Rumsey, J.:

The relator was dismissed from the police force on the 24th of March, 1897, upon the charge of conduct unbecoming an officer. The specification under that charge was that the relator, having reported sick on the 17th of February, 1897, was found oil the 20th of February, 1897, and on the 21st-of February, 1897, by the police surgeon so much under the influence of alcohol as to be unfitted for police duty. Rule 151 of the rules and regulations of the police force provide that whenever any member of the force is absent on account of sickness, which is feigned or simulated, or when it arises from excessive indulgence of appetite or other bad habits, he shall be liable to charges of conduct unbecoming an officer, and may be tried, convicted and dismissed from the force, or otherwise punished.

There is a very serious question whether the specifications under this charge are sufficient to bring it within any of the provisions of rule 151. But passing that point, it is necessary to examine

whether the testimony warranted the respondents in finding that the specification upon which the charge was based was true as a matter of fact.. The evidence to sustain it was Only that of the police surgeon, who reported that on Saturday, the- twentieth of February, he visited the relator at his house and found him sick; that he went through the usual examination-; that his face. was ' flushed, his eyes bright, his walk unsteady, his pulse full, and very feverish and .very quick, and.his breath sour,.as if he had partaken of wine or brandy; that he charged him with.being under the influence of alcohol and incapable of doing, duty^ and that on the. next day he visited him again and found substantially the same cbndn tions. From these facts the surgeon concluded' that the relator was intoxicated, and reported accordingly to. the .proper person, and caused charges -to be preferred against him. , On the part of the relator it was made to appear that on Wednesday, the seventeenth of February, at noon, he felt himself unable to remain upon duty and reported sick; that he went that day to the surgeon, but did not find him, and on the next day he consulted his own family' physician. The latter testifies that he advised the relator that he had gastritis or inflammation of the stomach; that at that time there were no signs of alcohol upon him ;, that , he was attempting, to vomit, and the witness advised him. to' eat ice broken in champagne, and to drink small quantities of the-champagne from time to time in teaspoonfuls. This he did on the nineteenth and twentieth, and this-was the only alcohol or alcoholic liquor which it appears he had partaken of up to the time when he. was visited by the surgeon, Dr. McGovern, on the twentieth. . There was considerable- evidence given as to the relator’s condition on the seventeenth and eighteenth, when he reported- sick, and it is practically uncontradicted that he was not on either of those days under the influence of - liquor; but it is clearly established that he was in fact a sick man. That he was quite sick on the eighteenth is established by his .own family physician, and that- condition, evidently continued' down to the twenty-first, when Dr. McGovern says, he found him exceedingly sick and in bed. There is.no evidence whatever that he had partaken of any liquor except the champagne, which had been prescribed by Dr. Sylvester, his family physician; and it is in evidence, and not contradicted, that this champagne,, small though the quantity was, might have been sufficient to produce the smell of liquor which Dr. McGovern found upon him, while his gastritis was sufficient to produce the other symptoms of feverishness described by Dr. McGovern. The evidence that he was under the influence of liquor depends solely upon the inferences which Dr. McGovern drew from what he saw on Saturday and Sunday. The facts testified to clearly show that those inferences were unfounded, and that the appearance of the relator was caused, not -by intoxication, but by illness and by the very small quantity of champagne taken by him in pursuance of the prescription of the physician.

These facts bring the case clearly within that of People ex rel. McAleer v. French (119 N. Y. 502), which holds that, 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 ofíense against the rules, and that it was conscious, voluntary, blamable, and in some way due to his fault. Usually, of course, the mere fact of intoxication establishes the offense, because ordinarily intoxication results from the voluntary act of the person who is in that condition. But when it is made to appear, as in this case, that the presumed intoxication was not such, but that the appearances relied upon to establish it arose from some other conditions, for which the relator was not responsible, and which did not constitute any offense, he should be acquitted of the charge against him so far as it is based upon the intoxication. In this case it is quite clear that there is an entire absence of" evidence which would warrant the finding that the specifications were true; and, therefore, the charge was not established.

The proceedings of the commissioners should be annulled and the relator reinstated, with costs.

Patterson, Williams, Ingraham and Parker, JJ., concurred.

Proceedings annulled and relator reinstated, with costs.  