Opinion
Argued March 15, 1897
Decided March 23, 1897
John M. Tierney for appellant.
Francis M. Scott and Terence Farley for respondents.
The government of the police department of the city of New York is confided by law to a board of police, consisting of four commissioners, who are empowered to make "rules and regulations of general discipline of the subordinates under their control, but in strict conformity to the provisions of" the Consolidation Act. (L. 1882, ch. 410, §§ 37 and 250.) "Members of the police force" are "removable only after written charges * * * have been preferred against them, and after the charges have been publicly examined into, upon such reasonable notice to the person charged, and in such manner of examination as the rules and regulations of the board of police may prescribe." (Id. § 272.) Pursuant to this authority the board of police prescribed, by rule number 189, that "when written charges shall be preferred against any member of the police force, they shall be filed with the chief clerk; whereupon specifications of the charges, with a notice of the time and place of trial, shall be served upon the party charged, two days before the trial, the days of such service being counted as one of the two days. Any member may admit the same in writing on a copy of the papers served, but no statement in explanation or mitigation of punishment shall be made on the papers." As this rule was made under the authority of a statute, it has the force of a statute to the extent that the authority conferred was complied with, and was as binding upon the members of the police board as it was upon the members of the police force. ( Matter of Moore, 108 N.Y. 280; People ex rel. McKenna v. Martin, 1 App. Div. 420, 422.) It prescribed what the commissioners regarded as a reasonable notice under the statute, and, as long as it continued in force, it could not be departed from by them without the consent of the officer against whom charges had been preferred. Compliance with the rule was essential to the jurisdiction of the police commissioners to try the relator and punish him. He was entitled to the prescribed notice in order to consult counsel, decide how to plead, subpœna witnesses and prepare for trial. He had a right to insist upon the full time, and unless it was given him, or he waived his right thereto, the commissioners failed to pursue the authority conferred upon them in the mode required by law. (Code Civ. Pro. § 2140.)
While it is stated in the return that notice was served on the relator "on or about the 31st day of August, 1894," which would have been in time, the admission of service, which is made a part of the return, shows that service was not made until September 6, 1894, which was not in time. As the first date is loose and uncertain, while the second is precise and definite, we think that, in view of the specific allegations of the petition upon the subject, the date of the admission should control. The failure to give the notice required by the rules is the gravamen of the petition for the writ, and the attention of the commissioners was specifically called to that point as the one chiefly relied upon to reverse their determination. Therefore, when they return two dates, one of which is indefinite, while the other is exact, a reasonable construction of the return, in order to ascertain their meaning, requires us to assume that they meant the latter. This conclusion is confirmed by the proceedings upon the trial for, as soon as the charge was read, the relator asked for an adjournment, and stated that he was not notified of the charge until the night before, to which no response appears to have been made. As the precise time was known to be essential, if the commissioners wished to return August 31st as the date of service, they should have said so definitely, without the use of a vague and elusive word like "about." Since the relator did not have such notice as the rules require, the only question remaining is whether he waived his right thereto by pleading guilty. The circumstances attending the entry of this alleged plea were peculiar. After he made his application for an adjournment, which was disregarded, he was asked by the commissioner in charge of the trial whether he was "guilty or not guilty." Before he answered this question he was sworn, apparently as a witness against himself, and he then replied that he was guilty, although, when permitted to make a statement, he declared, in substance, that he was not guilty of any part of the charge except the failure to report. If the time to which he was entitled under the rules to consult with counsel and decide what course to adopt had been given him, it does not follow that he would have answered the question of the commissioner as he did. Ignorant of his rights, without counsel or witnesses, he stood before his superior officer and judge virtually helpless and mute, because he had not been given the time and opportunity to defend that the law prescribes both for the guilty and the innocent. If he had refused to answer, it might have been treated as "an act of * * * disrespect toward a superior officer," warranting his dismissal from the force under rule 193, and if he answered at all, as he had been sworn, he was obliged to tell the truth. The commissioner, however, had no right to put him on trial at that time, because due notice had not been given. Hence there was no right to require him to be sworn or to answer any question after he was sworn, as that was a part of the trial. If there was no power to then investigate the charges, there was no power to compel him to say, under oath, whether he was guilty or not. Under these circumstances, the relator cannot fairly be held to have intended a waiver of his rights. We do not regard his answer, thus given, as a plea of guilty, because it was not given until after he had been sworn, when it became a matter of compulsion. His request for an adjournment in order to get witnesses shows that he did not intend to plead guilty. It was not a voluntary confession of guilt, understandingly made and intended to have the effect that is ordinarily given to a plea of guilty. The commissioner apparently was of this opinion himself, for he proceeded with the trial, swore and examined several witnesses and gave the relator an opportunity to cross-examine, which was declined. During the trial he asked the relator several questions, and among them were the following, together with the answers thereto, viz.: "Q. Is it true, Officer Jordan, that you falsely represented that you were going to attend a funeral from Kings Bridge to Kingston, and obtained leave of absence on that ground? A. I obtained leave of absence to attend a funeral in Kingston, which I have on two other occasions where the rest of the family is buried. I didn't know anything about the change of the burial place until I got home Wednesday morning. Q. Is it true that you failed to report at the expiration of your leave of absence that you had been arrested for disorderly conduct? A. Yes. Q. That is true? A. Yes." It is now said that the entire investigation was simply to aid the police board in fixing the punishment, but it does not so appear from the return, which states in substance that "the said charges" were "duly brought to a hearing and duly tried, heard," etc.; that "the proofs and allegations in relation to said charges" were "duly taken and recorded * * * and due deliberation thereon had," whereupon it was "ordered and adjudged that the said charges are true," and that the relator should be dismissed. This shows that the commissioner neither regarded nor accepted the relator's answer to the question put as a plea of guilty. When the full board considered the case they did not convict the relator upon any such plea, but upon "the proofs and allegations." Neither the return proper, nor the order of conviction which is made a part thereof, states that the relator was convicted upon a plea of guilty, but on the contrary the theory of procedure as interpreted by the commissioners themselves is that he was convicted after a regular trial and due consideration of the evidence taken.
We think that there was no waiver, and that the relator was tried and convicted in disregard of the rules made for his protection.
It follows that the order of the Appellate Division should be reversed, the proceedings of the police board annulled and the relator reinstated, with costs.
ANDREWS, Ch. J., O'BRIEN and BARTLETT, JJ., concur; GRAY, HAIGHT and MARTIN, JJ., dissent.
Order reversed.