This - is a- proceeding to review -by certiorari the action of the board of trustees of the village of Saratoga Springs ;iti- trying the relator ¡and' removing' him, after such- trial, from the. office of street - commissioner of said .village.
The office of street commissioner and the manner of appointment is provided for by- chapter 470 of the Laws of 1890.
Section 22 of chapter 220 of the Laws of 1886, as amended by section 7 of chapter 247 of the Laws of 1895, provides that “the board of trustees shall have, power to remove any officer of their appointment, except the president of the village^, and they may also *401remove any member of the board of fire commissioners, or the board of police commissioners, or the board of street commissioners, or the board of water commissioners, upon charges preferred and proven against them after notice of the hearing thereof.”
The relator was appointed to the office of street commissioner and entered upon the discharge of his duties May 1, 1892.
On the 2d of July, 1895, Charles D. Thurber, one of the trustees of the village of Saratoga Springs, preferred charges against the relator of official misconduct. A copy of the charges was served upon the relator, evidence was taken by the ■ board of trustees and such proceedings had that he was declared guilty of the charges preferred and removed from office.
From the view that I have taken of one question involved in this case, it seems to me unnecessary to dismiss the nature of the charges or whether they were sustained by the evidence taken before such board.
The courts will not scrutinize carefully the manner of proceeding upon trials had before boards like that whose proceedings are now under review, so long as they can see that substantial justice has been done and no real right of the person so tried has been infringed upon. It is not to be expected that the same precision in relation to the laws of evidence or regularity of procedure will he observed by such tribunals as in regularly organized courts of justice; but those things which have always been deemed essential and fundamental in the exercise of judicial powers should be insisted upon;
Powers such as those conferred by section 7 of chapter 247 of the Laws of 1895 for the trial of offenders have been conferred upon other boards in this State for similar purposes, and the manner in which those powers should be exercised has been the subject of judicial inquiry.
Where a board of police commissioners was authorized to make rules and regulations for the government and discipline of the force, to punish members' of the force violating such rules, or who were guilty of conduct unbecoming an officer, and to adopt rules for the examination, hearing and determination of charges against members of the force, the court, in speaking of the powers of such commissioners to try and punish police officers, said : “ They are empowered to punish a member * * * who is guilty of conduct unbecom*402ing an officer, and the only limitations upon their disciplinary powers is the express one that a tidal- shall be had upon written charges and upon, a reasonable notice -to the accused, and tire implied ones that that trial shall be a proceeding fairly conducted ■; that the decision Shall be based upon evidence of the truth of the charges, and that no immunity or privilege secured to t-hé accused by the law of the land shall he violated.” (People ex rel. Weston v. McClave, 123 N. Y. 512-516.)
One of the rights secured to ah accused person by the law- of the land is, that his accuser shall- - not be at the same time his judge; miít is a principle of law" that is. fundamental; it is the first requisite-¡to a fair and impartial trial; it is a privilege that the law of the-land guarantees to every man when his life or liberty, good name, fame or property is involved.
. “ It is a maxim of every code, in every Country, that no man should be judge in his own cause. The learned wisdom of enlightened nations, and 'the. unlettered ideas of ruder societies, are in full accordance upon this point; and wherever tribunals- of justice have existed,; all men have agreed that a judge shall- never have the power to-decide where he is himself a party.” (Washington Insurance Company v. Price, Hopk. Ch. 1.)
When á cause was tried in a Justice’s Court and a verdict found for the plaintiff, and the justice, at the request of the counsel for the defendant, .who was an attorney at law,, in-the'absence of the counsel, prepared an affidavit for the defendant preliminary to the suing out of a certiorari, and also prepared, the other necessary papers, it -was held that the conduct of the justice was improper and .that the certiorari ought to be quashed. The court. said that: “• By preparmg.the affidavit the justice was in some degree committed to make his return to conform to what.he had previously alleged was 1 the-substance of the testimony and'proceedings ’ in the cause. But, independent of this consideration, the act complained of Was calculated to impair the -confidence of the opposite party in the impartí-, ality of the officer, which is, of itself, an, evil- which should be care^ fully avoided. Next in importance to the duty of rendering a righteous judgment is that of doing it -in such a manner as will beget no suspicion of the fairness and integrity of '.the judge.” (The People ex rel., Roe v. Suffolk C. P., 18 Wend. 550.)
*403• ■ Judges are prohibited from acting in cases that .they liaye been connected with when practicing at the bar. ■ And the same principle is. engrafted into the Constitution in prohibiting judges of appellate courts sitting in review of decisions' made by them at Trial .or Special Term. So strict is the observance of this principle that it has been held that a disqualified judge cannot act even by.the. consent of the parties interested; that it is a matter of .public concern ■that parties cannot waive. . _ -.A..-
In Oakley v. Aspinwall (3 N. Y. 547) it was held that a. judgeidf an appellate court, related to one of the parties to'the appeal by'consanguinity, could not act even by consent of both parties, the. court, among other things, saying: “ The first idea in the administration of justice is, that a judge must necessarily be. free, from all bias ".and partiality. He cannot be both judge and party;,arbiter and advocate in the same cause. Mankind are so agreed dri this- principle that any departure from itshocks their common sense.-and sentiment, of justice.” The judgment rendered in .the case having' turned on the vote of the disqualified judge, it was held that it should, be vacated. This decision has since been followed and approved in. Converse v. McArthur (17 Barb. 410); Matter of Hancock (27 Hun, 78); Chambers v. Clearwater (1 Keyes, 310); Sentenis v. Ladew (140 N. Y. 467). ' -. -
- ■ In. the case at bar the relator.was convicted.and removed from office by the vote of the man who preferred the charges against him,
■ ■ The board of trustees of the village of Saratoga. Springs consists of .thirteen members.. (§ 4, chap. 220, Laws of 1886, as amended by § 2, chap. 247, Laws of 1895.) ;
...Seven of that number constitutes .a quorum, or majority of'the .body, and can exercise, the power' cenferrred upon-the board to fry village officers; (Stat. Const. Act, chap. 677, Laws of 1892, § 19.)
At the time of-the conviction and dismissal of the-relator from •office, there were seven members of the board of trustees present, including Mr. Thurber, who. made the charges.-against .the..relator. Upon the question as'to'whether the. charges were sustained, .fiye voted aye, one voted no, and Mr.Thurb.ef did. not vote. Upon the question “As punishment,..shall Street Commissioner. Cha.rleg L. Pond- be removed from..office?” .six'.icommissiohers,.including.Mr. Thurber, voted' in the affirmative, and one in the negative, . With*404out spending any time in. discussing the question as to whether the relator was, in fact, ever found guilty upon the charges preferred against him, six trustees only having voted upon that question, one of the six voting in the negative, and there, therefore, being no quorum acting, I will take the act of removing him from office, as the test. Upon the final vote seven voted, one of. them the man who. made the charges; without his vote there was not a quorum acting; except for his vote the relator would not have been removed from office.
' The presence of the disqualified man enabled them, to act. The prosecutor constituted a. part of the court. If he had withdrawn there would not have been a sufficient number present to give them jurisdiction to act. Six trustees had no power, no jurisdiction over -the" relator ; the presence of the. seventh trustee was necessary to give jurisdiction. . The whole proceeding then turned upon Mr. Thurber’s acting as a part of the quorum. He, in effect; condemned the relator. The accuser and prosecutor determined the truth of the charge brought by him. He decided his own case.
But it is said the board of trustees did not constitute a court, and th"at Thurber was not acting as a judge.
1 '"Blackstone defined a court as consisting of at least three constituent parts, namely : “ The actor, or plaintiff, who complains of an injtiry clone;" the reus, or defendant, who is called upon to make satisfaction-' for it, and' the judex, or judicial power, which is to éxámine the truth of' the fact, to determine the law arising upon that fact, and, if any injury appears to have been done, to ascertain and by its officers to apply the remedy.” (3 Black. Com. 25.)
In'the proceedings now under review, we have the three constituent parts of a court as Blackstone defined them : The actor, Thurber, who complains of an injury done to the public; the defendant, the relator, and the judicial power to ascertain the truth of the charges; the board of trustees.
Witnesses were sworn, their evidence taken and arguments heard, and the board passed Upon the effect of that evidence.
“ To administer oaths, to hear evidence, to weigh its effect, to compare it with the law and to decide the questions presented, are of the essence of judicial action.” (Barhyte v. Shepherd, 35 N. Y. 238-251.) - .
*405The action the board was taking was judicial, and for the purpose of examining the charges against the relator it was a court, and Thurber was one of the judges composing it.
“ It is a general and sound principle that, whenever the law vests any person with a power to do an act, and constitutes him a judge of the evidence on which the act may be done, * * * the person thus clothed with power is invested with discretion, and is quoad hoc, a judge.” (Vanderheyden v. Young, 11 Johns. 150-158.)
In the case of The People ex rel. The Mayor v. Nichols (79 N. Y. 582) which was a case where the relator Nichols had been removed from the office of police commissioner by' the mayor of New York city, the court said : “ The relator was the mayor of the city, and its charter conferred upon him power to remove the defendant, but only £ for cause and after opportunity to be heard.? (Session Laws of 1873, chap. 335, § 25.)
££ The power is not an arbitrary one, to be exercised at pleasure, but only upon just and reasonable grounds, and then not until after notice to the person charged, for in no other way could he have ‘ an opportunity to be heard.’ The proceeding, therefore, must be instituted upon specific charges, sufficient in their nature to warrant the removal, and then, unless admitted, be proven to. be true. Defendant might also cross-examine the witnesses produced to support the charges, call others in his defense, and in these and other steps in the proceeding be represented by counsel. In no other way could the person sought to be removed have a due hearing or ‘ an opportunity to be heard,’ and this condition must be complied with before the power of removal is exercised. (Reg. v. Smith, 5 Q. B. 614; Osgood v. Nelson, 5 House of Lords, 636; People ex rel. Munday v. Bd. Fire Com'rs., infra.)
“ It follows, therefore, that the proceeding is judicial in its character, and, as a necessary consequence, is subject to review by a writ of certiorari issued by the Supreme Court in the exercise of its superintending power over inferior tribunals and persons exercising judicial functions.”
The trustees then, within these authorities, were upon the trial of the relator exercising judicial functions, a complaint was pending before them, witnesses were sworn and examined, and they were to *406determine'upon.the evidence whether the complaint was sustained. Everything that goes.to make á judicial proceeding is present in this case; and the trustees who heard the proceedings were, for the purposes of those proceedings,, judges. '
It is said, however, it was necessary for Mr. Thurber to act; that the board of trustees is the only tribunal that can take cognizance -of the charges against'the relator; that, therefore,’it was-necessary for the board of .trustees to take action or it could not be taken at all, and that Consequently the duty to act devolved upon each mem bér of the board" of trustees, notwithstanding he might be in such a situation as would disqualify him to act if a judge of juror, and the case of The People ex rel. Burby v. Common Council (85 Hun, 601) is' cited to -sustain that contention. I cannot acquiesce in the doctrine of ike Burby. cáse; I do not think it can be sustained either upon principle or authority.
Oases are to be found where judicial officers, or officials acting in a-judicial capacity, have béen permitted to act notwithstanding the diSqüalification.of interest, but I think, without exception, they have all'been eases'where, unless such officer was; permitted to'act, there would have been a failure of jiistice, for the reason that there was no' other person Who could act.- They have been confined . to cases where the judicial tribunal, or body to act; eonsisted'of but a single person, and there was no other - tribunal or officer before whom the proceedings could be taken, and the officer was permitted to act from necessity. This exception from the general rule has never been recognized where the judicial body or. tribunal consisted of more than one officer, and is illustrated by the case Of Oakley v. Aspinwall (3 N. Y. 547), above cited, where a judgmént pronounced by a court consisting of several members was vacated and set aside because one of the judges'1 acting was related to one of the parties'.
In" the case of The State, Winans, v. Crane (36 N. J. L. 394) it was held that where one of the members of a -board of five highway-commissioners, who were authorized', to lay out highways and assess damages, had acted in a cáse where he had more than the general interest of a taxpayer, that his acting rendered the whole proceeding void, even if there was a majority of the commissionefs left, competent to act without his vote-; that the fact, that all power being lodged in the commissioners to lay oiit roads for the township, and *407that none could be laid out if a majority of them were interested, unless they were permitted to act, did not create a legal necessity that would permit interested commissioners to sit in judgment in their own cases.
And the Legislature having passed an act which was intended to cure the illegality of the proceedings, by legalizing such acts, where a majority of the board, exclusive of the interested commissioner, had taken action, it was held that the Legislature had no power to legalize such proceedings.
The case of Ryers et al. v. Commissioners of Audit, etc. (72 N. Y. 1), cited to sustain the contention of the court in the Burby case, it seems to me is very far from sustaining it. In that case proceedings were taken before a county judge for the condemnation of lands, and it appeared that he had an interest in some of the lands affected, but he was the only officer before whom the proceedings then in question could be taken, and the court after reviewing the authorities formulated this rule : “ That where a judicial officer has not so direct an interest in the cause or matter as that the result must necessarily affect him to his personal or pecuniary loss or gain, or where his personal or pecuniary interest is minute, and he has so exclusive jurisdiction of the cause or matter by Constitution or by statute, as that his refusal to act will prevent any jn’oceeding in it, then he may act, so far as that there may not be a failure of remedy, or, as it is sometimes exjmessed, a failure of justice.” (72 N. Y. 15.)
It will be seen that it is very far from establishing the principle that a member of a court composed of several persons can be permitted to act in a proceeding before it to which he is a party in interest.
It will be observed that the court is very guarded in limiting the eases where one interested in the result may act; it confines it to those cases where he has exclusive jurisdiction, and even then limits it, in addition to those cases, where, the .result need not necessarily affect him to his pecuniáiy loss or gain, and, still further, .that his interest must be only minute; and when all these conditions are complied with, he can only act so far in the matter as to prevent a failure of justice. These restrictions and limitations seem to me to make this case an authority for the reverse of the proposition contended for in the Burby case.
*408In the case now under consideration the body charged with the duty of investigating the complaint against the relator was composed of thirteen members; it was not necessary that they should all act; the statute provides, as we have seen (§ 19, chap. 677, Laws of 1892), that where three or more public officers are given power or authority, or are charged with a duty to be performed or exercised by them as a board, a majority of them may exercise such power or perform such duty. So the doctrine of necessity which has been applied to a sole judicial tribunal has no application to the case under consideration. There was no necessity for Thurber to act in order to have the charges brought by him against the relator acted upon.
■ For the reason, then, that the accuser was permitted to sit in judgment upon the charges preferred by him, and that the relator was convicted by the vote of his prosecutor, I think that he has been •deprived of one of the rights and privileges guaranteed to him by the laws of the land, and that the proceedings of the defendants in trying the relator and r¿moving him from office were illegal, and should be vacated and set aside, and it is, therefore, ordered :
That the proceedings of the defendants, The Board of Trustees of the Village of Saratoga Springs, on the 9th day of August, 1895, adjudging the relator, Charles L. Pond, guilty of official misconduct, and removing him from the office of. street commissioner, of the village of Saratoga Springs, be and the same hereby are vacated and set aside, with fifty dollars costs and disbursements.
The same question is presented in the case of The People ex rel. Michael J. Fay v. The. Board of Trustees of Saratoga Springs, argued at the same time with the one herein discussed, and a like order should be entered in that case.
Parker, P. Jt, concurred; Landón, J., concurred in résult; Merwin, J., dissented; Putnam, J., not acting.
Proceedings of defendants in removing the relator from office vacated and set aside, with fifty dollars costs and disbursements.