People ex rel. Doody v. Bishop

Titus, Ch. J.

(dissenting). The writ of certiorari in this case issued to the defendants, constituting the board of police of the city of Buffalo, requires them to make return of all and singular the evidence and proceedings had on the trial of the relator for neglect of duty while a member of the police •force. It appears from the return that the relator was appointed doorman in 1889; his duties were to receive and send messages from the station house where he was stationed, and to use the telephone in connection with the police department work. In a general way he had charge of the electric appliances at his station, and in the absence of his superiors had charge of the station. He was required to be proficient in telegraphy, and, from' the nature of his duties, he must be familiar with such electric appliances as were in use by the ■department.

He was assigned to different stations, as the service required, and on the twenty-fifth day of August he was assigned to •duty at headquarters. It does not appear that his duties *278there were different in character or required more skill in the-performance of them than while on duty at the station house. He was required to use .the telegraph and telephone in receiving reports from officers and station houses, and to-make and keep a record of them. It was his duty to “ Q. 3L” ' slips containing the reports of patrolmen' from the different, patrol boxes.

He is charged with neglect of duty in failing, on December 4, 1894, “ to answer twenty officers’ report calls received by him from officers on post duty,” and in failing “to obtain the-names of twenty -officers who sent in officers’ report calls.” It is further charged that he . received '“ a wagon call from box 5 at 3.28' o’clock, p. m., and neglected to transfer said call to Ho. 1 patrol wagon station until twelve minutes later,”' when he should have immediately transmitted the message'.. It does not seem to be disputed that 'the board of police had sufficient evidence to warrant them in finding the charges sus-' tained, but it is claimed that he was not able, from want of experience in the performance of the duties required of him, to meet-the requirements of his changed position, and that the-duty of a. doorman, with the position he held, did not require of him that degree of skill necessary to perform the more-difficult task to which he was assigned at headquarters, and hence it is claimed he cannot be removed for insufficient. knowledge and skill in those duties to which he was riot originally appointed, and which in the position of doorman he would not have been required' to perform.

It seems to be unnecessary in disposing of this case to pass upon this question. Whether the board of police can appoint a man to a position requiring little or.no skill, in which he performs-well all duties required of him by the position, "and then assign him to á position requiring much greater skill, or a different, grade of education and training, is not necessary to decide, but' there seems to be reason in the position that a man fit. and qualified for a particular duty to which he is appointed should not be required to perform other duties to which he was not: appointed, and for which he might- not be qualified,- and thus *279subject him to removal for failure through lack of training or skill in their performance. It is by no means clear that he was not sufficiently qualified and skilled in his duties to perform them. The nature of his work was the same as he had been doing at the station houses, and it cannot be seen how a man skilled in the use of the telegraph and telephone, as the relator must have been, should fail to perform the duties assigned him at headquarters. There is no evidence • that it required any different knowledge or skill; according to his own testimony, he understood the system of receiving calls and recording them, and wras familiar with the patrol signal system. His only claim is that he is bothered in getting the names; that if he had tiriie to get the names he could do the work as well as any man there. He does not appear to have made any complaint to the superintendent that he could not' keep up with the work, or that he required more practice before he was equal to the duties of the position. He continued voluntarily and of his own accord in a position with the duties of which he was entirely familiar, and yet claims he could not keep up with the work.

The sufficiency of the relator’s excuse for failure to perform his duty rested wholly in the sound discretion of the board of police. They had authority and jurisdiction to try the relator. Chap. 105, Laws of 1891, § 192.

I do not think their determination reviewable in this proceeding. If the board was not satisfied .with his excuse for failure to properly perform his duties, it cannot be said they should have been. He may have been careless when care was required. He may have been animated by some motive 'to have the work neglected, that others might be charged with his neglect. There is some evidence of ill-feeling between him and,his associate employees, and the whole question was for the board to pass upon and determine, and not for the court on review. People ex rel. Cook v. Board of Police, 39 N. Y. 506; People ex rel. Masterson v. French, 110 id. 494; People ex rel. Hart v. Board of Fire Commissioners, 82 id. 358.

*280The weight of the relator’s evidence, its force and tendency, • can be much more accurately ascertained by the board than-by the court. Its members are familiar with all of the circumstances surrounding' the case. They are familiar with the . duties of the position which the relator occupied; they knew his capacity and fitness to efficiently perform those duties, and unless they, have stepped outside their authority, and. acted without evidence, their conclusion will not be disturbed. People ex rel. Bradley v. French, 7 N. Y. St. Repr. 253.; People ex rel. Taylor v. MacLean, 38 id. 896.

From what has been said, it follows .that the proceedings and decision of the defendants should be affirmed, but without costs.

. Proceedings reversed, and board of police ordered to reinstate the relator, with costs...