I must express my dissent from the views which lead my associates to a reversal of this order.
The facts in the record seem to furnish a strong appeal to the sympathies in behalf of the appellant, and to indicate that his was an extremely severe punishment; but, with the degree of the punishment and the exculpatory circumstances of the appellant's case, the appellate tribunal has no power to deal. The police commissioners might well have considered the good record of the accused, and the mitigating circumstances under which his offense occurred. But this case is indistinguishable from that of Peopleex rel. v. French (110 N.Y. 494), where we unanimously agreed upon the rule of law in such cases. The rule was salutary and sound and, in my opinion, to reverse the order in this case is to introduce an inconsistency in our rulings, which will impair the force and good effect of that rule.
As a record, the Masterson Case was even less strong than this for the application of the rule. There the accused pleaded not guilty. Here the offense charged was that the officer was so much under the influence of liquor as to be unfit for duty. Upon the trial the intoxication was admitted by the accused and was independently proved. The trial before the commissioners was conducted with an evident bias in favor of the officer, from his previous record. He was told to plead to the charge one way or the other, and then said, "it is true." The sergeant said there was no doubt in his mind that the accused was under the influence of liquor, and the roundsman testified to the same thing. Under rule 193 of the police force "any member of the police force may be punished by the board of police, in their discretion, * * * by dismissal from the force on conviction of * * * intoxication * * *." That punishment the board decided to, and did, impose.
It is impossible to say that there was not evidence here, upon *Page 500 which the commissioners acted. It is said that the plea of the accused may be disregarded as an admission, and that the evidence does not amount to proof of conduct unbecoming an officer; but, certainly, with, or without, his plea, it was testified that he was under the influence of liquor; which is the precise offense which the rule specifies as warranting the commissioners to exercise their discretion, in the imposition of the punishments prescribed. It does seem to me that we cannot rearrange and weigh and explain away evidence to relieve against what we may deem an unmerited sentence, without arrogating to ourselves new functions and powers as a tribunal. This court should not review the determination of the court below, except when the record presents some question of law. No such question arises here. The evidence is not even conflicting as to the officer's having been affected by liquor. It only raised a fair question as to whether the conceded and proved offender should be dealt with severely.
In the Masterson Case, the accused officer attempted to escape the consequences of the proof of his intoxication, by showing that his physical ailment was the cause of taking the liquor. RUGER, Ch. J., delivered the opinion of the court, in which we all concurred, and said: "Whether under special circumstances a particular officer is excusable for having voluntarily rendered himself unfit for duty, or violated police regulations, depends so much upon the personal knowledge and experience of the commissioners and the consideration by them of individual character, the general moral condition and discipline of the force, and other facts peculiarly within their knowledge, that an attempted review of their action by an appellate tribunal would proceed in a great measure in ignorance of the facts upon which it was predicated. * * * We are, therefore, of the opinion that this question was exclusively for the consideration of the commissioners, and that the appellate court had no authority to review the exercise of their discretion on the subject." And before that, this court had held, in People ex rel. v. FireCommissioners (82 N.Y. 358), that "we are not to inquire into the merits of the decision, *Page 501 or the justness of the penalty imposed. We can only look far enough to see that some violation of duty, some incompetency, or negligence, was charged against the relator and evidence given tending to establish its existence."
There was no doubt here about the fact of intoxication. The only doubt which exists is, whether, under the attendant circumstances, the penalty mentioned in the rule ought to have been inflicted. But what has the appellate tribunal to do with that? The rule was one which was within the power of the police board to enact. (People ex rel. v. Police Comrs., 99 N.Y. 676. )
It was the law of the case and conferred a discretionary power upon the board with respect to the punishment of a convicted offender. The commissioners had before them the accused and the proofs. They knew of the circumstances surrounding his act, but they also knew the officer, and still they decided to impose the extreme punishment. We cannot say there was no evidence to authorize their judgment of conviction; only, that the excuse might have had some weight with them. But, as we held in theMasterson Case, the matter of the excuse was one exclusively for the consideration of the commissioners.
I think we should adhere to our previous ruling, and that a reversal of this order will tend to introduce a confusion of authority, which will promote doubt and dissatisfaction in the force, respecting the determination of their governing body, to the detriment of its efficiency. To reverse, in the face of the former ruling, is to invite appeals to this court in every case where a member of the force of a department of a municipal corporation is disciplined, and to subject the determination, upon questions of fact and discretion, to the judgment of this court.
I think every consideration of policy and the importance to the community that there shall be a uniform rule, with respect to the review of these cases in the appellate court, consistently adhered to, demand that the order appealed from should be affirmed.
All concur with FINCH, J., except RUGER, Ch. J., and GRAY, J., dissenting.
Order reversed. *Page 502