I dissent from the conclusion of the court in this case. The defense to the relator's claim for salary is that, by reason of absence from duty without leave for the term of five days, he had, from the nineteenth day of June, ceased to be a member of the police force of the city.
The section of the statute upon which this defense rests is as follows: "Any member of the police force who shall be absent from duty without leave for the term of five days, shall, at the expiration of said five days, cease to be a member of the police force." This provision is contained in chapter 755, Laws of 1873, section 5, which is entitled "An act supplemental to the act entitled `An act to reorganize the local government of the city of New York,' passed April 30, 1873." This statute relates wholly to the police force of the city, and is supplemental to article 7 of chapter 335 of the Laws of 1873. Article 7 relates generally to the organization and discipline of the police force, and, among other things, provides for a board of commissioners, to be known as police commissioners, who shall appoint the police force. It then provides, section 41, "that the government and discipline of the police department shall be such as the board may prescribe, but members of the police force shall be removable only after written charges shall 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."
Section 47. "No member of the police force, under penalty of forfeiting the salary or pay which may be due to him, shall withdraw or resign, except by permission of the board of police.Unexplained absence without leave of any member of the police force for five days shall be deemed and held to be a resignationof such member and accepted as such." *Page 253
Section 55. "The board of police shall have power, in its discretion, on conviction of a member of the force of any legal offense or neglect of duty * * * or absence without leave, * * * to punish the offending party by reprimand, forfeiting pay for a specified time * * * or dismissal from the force."
Thus stood the law on the subject under consideration from April 30, 1873, until the enactment of the supplemental law on June thirteenth of the same year. Absence from duty, withoutleave, for any period of time, was an offense for which the offender might be tried, and upon conviction punished by reprimand, fine or dismissal from the force, and unexplainedabsence without leave for five days, was to be deemed a resignation and accepted as such. The latter offense was made a more severe one than the former, and was visited with a more severe penalty.
Section 5 of the supplemental act must be read in connection with these provisions. The several sections quoted are in parimateria, and the legislature intended to supplement the old law by the new provision. But if this provision is to be construed as relating to a voluntary absence only, and not to an involuntary or enforced absence, it will be found that the new provision is mere susplusage and adds nothing to the old law. Clearly, under the first act, no member of the force, if absent for a period less than five days, could be removed except after trial and judgment of the board, and in case of absence for a period of five days or more, whether or not such absence should be deemed and held to be a resignation, would depend on the explanation of the absentee to his superior officer. This would involve examination and evidence, and the determination of the fact as to whether the explanation was sufficient and satisfactory, and would, therefore, necessitate a trial and judgment.
It thus appears, I think, that under the principle act no member of the force could be removed except after trial, and this involved the preferment of charges and reasonable notice thereof to the accused and a public examination. If, now, *Page 254 section 5 of the supplemental act is to be construed to refer to voluntary absence only, what has been added to the prior law or of what force is the later enactment? Involuntary absence is explainable absence, but this offense is covered by the first act, and those guilty of it may, under its provision, be removed from the force. This construction must, therefore, be rejected as giving no effect to the manifest intention of the legislature to alter the first law.
That the legislature intended to add something to the law is obvious, and I think they have expressed their intention so clearly that the meaning is plain.
Under the first act, as I have shown, there would necessarily be dismissal by the show process of preferment of charges and trial, but, intending to remove the necessity of a trial and make absence for the period stated, itself work a destruction of membership of the force, it was enacted in plain and unambiguous language that a member of the force who should be absent for five days without leave "at the expiration of said five days shouldcease to be a member of the police force." No written charges or trial or conviction by the police board is made necessary to accomplish that result, but at the end of the fifth day of absence the absentee ceases, ipso facto, to be a member of the force. Absence works its own penalty, and the law executes itself. No other construction will harmonize the two acts and give effect to all the provisions on this subject. The omission in the supplemental act of the word "unexplained," and the provision that the absentee should at the expiration of five days "cease to be a member of the force" in place of that contained in the principal act, that absence should be held to be aresignation of such absentee, indicates clearly to my mind, the intention of the legislature to make "absence" of itself work a dissolution of membership in the force. Section 5 of the supplemental act is plainly a substitute for the provision relating to unexplained absence in section 44 of the principal act. The two provisions cannot stand together and the later must prevail.
This view of the law has further confirmation by section 273, *Page 255 chapter 410, Laws of 1882, known as the consolidation act, where it appears that the legislature have, to a limited extent, restored the provisions of the first law of 1873, and provided that "unexplained absence * * * for five days shall be deemed and held to be a resignation, and the member so absent shall atthe expiration of said period cease to be a member of the police force." Whether under this provision an absentee would be entitled to a trial or whether the law executes itself is not now necessary to be determined.
Public policy also dictates that this construction should be placed upon the law. The police force of the city is a semimilitary organization. Its efficiency can be maintained only by discipline of the strictest character. The numbers of the force and the power to increase it is limited. It watches over a large territory and the maintenance of order throughout the city demands from each member his presence at his post. Absence from duty without leave would be an offence which, more than all others, would impair its efficiency. Mindful, doubtless, of the necessity of strict discipline among its members, the legislature has seen fit to prescribe that absence for a given period without leave shall forfeit the absentee's position on the force. This rule is the law of the police officer's being, under which he enlists. The state has said to him, in substance, if you are absent from your post at any time for five days, you cease to be an officer at the expiration of that period. No matter what reason may exist, the fact of absence removes you from the force. And is not this rule, in view of the constant vigilance necessary to protect the property and inhabitants of the chief city of the nation, a reasonable and proper one? Suppose sickness should break out among the officers of the force disabling many from the performance of their duty, and some emergency should arise requiring the service of all the members of the force, would not the police commissioners have the right to say to the sick, we will not give you leave of absence, the public interests will not permit, we must have your service or fill your place with others? I think such power should exist. In other words, *Page 256 that the police board should have power at any moment to increase the force to the limit allowed by law, but under any other construction of the statute under consideration many officers might be absent from duty, from causes over which they had no control, and the city be compelled to do without their service and the police board be powerless to supply their places.
The board, under section 3, chapter 755, Laws of 1873, have power, by a unanimous vote, to restore a member who has been dismissed from the force, and under this provision no substantial hardship can befall any member under the construction I have given the law.
I think the judgment should be reversed, and the proceedings dismissed, with costs.
POTTER, BRADLEY and VANN, JJ., concur with PARKER, J.; FOLLETT, Ch. J., and HAIGHT, J., concur with BROWN, J., dissenting.
Order modified as directed in the prevailing opinion, and affirmed as modified.