dissenting.
When I differ with the court, I hope I am wrong, for I would rather err in opinion than for the • court to err in judgment. Still, I must abide by my convinetions, and declare them. I do so in the present instance, with no zeal whatever to establish like convictions in the minds of others.
The. board of police commissioners had no existence until March, 1874. Their powers are defined by the city charter, one of which is to suspend or remove members of the police force, “ for a failure to perform any duty required by law or the city ordinances.” This is to be done by accusation and trial, in the manner prescribed by ordinance. They are required to “ keep a record of their proceedings.” Acts of 1874, pamph. p. 135. Their proceedings against Queen are thus recorded in their records: “ Policeman D. M. Queen was arraigned and tried for immoral and disorderly conduct, in the seduction of Georgia Teat, thereby causing her death at childbirth.” “April 1st, 1874.” “Found guilty, April 7th, 1874.” As I understand this accusation, it charges no act but seduction, and the death is alleged to have been the consequence of thqt act. No other consequence is specified. There is no allusion to any failure, either to aid the mother or support the child. The evidence introduced by the city on the trial of the present case, shows that the seduction took place in 1873; that the child was born in March, 1874; that the mother died in child-birth, and that the child also died. Thus, it appears that the police commissioners took jurisdiction of an act of seduction which was committed before their own creation as a board, and before Queen was connected with the police, other evidence in the case showing that he was not elected or appointed by the city council until January, 1874. In so doing, I think they transcended their powers as a judicatory, and that their judgment is void. I have tried to bring my mind to an agreement with *325my brethren, by looking at the proceeding as a trial for murder, and considering the mortal blow as given in 1873, and the death not produced, and consequently the crime not complete, till March, 187-1. But the truth is, seduction is not homicide, in legal contemplation, though conception be consequent thereon, and death be consequent on parturition. Nor does the morality of seduction depend on results in the particular case. The seducer is equally immoral, whether the seduction be fruitful or unfruitful. The immoral conduct for which Queen was tried and found guilty? was complete in 1873. His act was consummated, and it's moral character was fixed forever. The police commissioners, as a court, can deal with policemen only for what they do after they assume the obligations of policemen. If there is a law or ordinance which requires policemen to relieve or support the women they may have seduced, or the bastards they may have begotten, any failure to comply with such law or ordinance would be cause for removal. But it would be very singular for a city to retain seducers who were good in furnishing support, and dismiss those who were not. The scandal of sirch a line of discrimination would be very great. It occurs to me. that it would be unseemly, in the last degree, to make the police commissioners supervise, judicially, the members of the police force in duties springing out of past immorality and shame. My belief is, that there is no law or ordinance to try a policeman, as such, for failure to provide for his mistress or his unacknowledged offspring. I think Queen was not tried for anything of the kind, but that he was tried alone for the immorality of seducing a woman, the remote result being the woman’s death. This is according to the record; and, I doubt not, the record states the accusation as the commissioners understood it. They found him guilty of the seduction, and for that they discharged him.
While I think they could not, as a court, deal with him for conduct ante-dating his appointment, I think they could, *326as executive agents of the city, terminate his engagement for good cause, just as any other employer could do in respect to an employee in a position of trust and confidence, who was hired as a sheep, but turned out .to be a wolf in sheep’s clothing. Seduction committed during the preceding year might be cause, if unknown at the time of the engagement, and discovered afterwards. I suppose it would be; for the watchmen of a city ought not to be recent betrayers of women. Having a seduced woman on one’s hands, with or without a child, might be cause also, whether she was attended to and duly cared for or not. It would add little to the feeling of security on the part of the public to know that, though there were seducers on the force, they were very scrupulous in providing for their victims. Executive, instead of judicial discharge, would involve no question of jurisdiction, but only a question of justification. On this, the policeman could have a fair and full trial in a suit for his wages. The city could defend by pleading and proving that the seduction or other cause alleged was true in fact; and the policeman could have the benefit of testimony in 1ns favor. I grant that, in a proper case for judicial discharge, the decision of the commissioners, unreversed, would be conclusive. And were the present a ease of that character, I should concur in the judgment. But, believing that the commissioners had no judicial cognizance of the matter on which they adjudicated, and the defence to the present action having been put by the plea and the evidence solely on that adjudication, I think the action was not successfully defended, and that the verdict of the jury should not have been disturbed.