#### PEOPLE ex rel. VINCENT v. COMMON COUNCIL OF CITY OF HUDSON et al.

(Supreme Court, General Term, Third Department.

May 8, 1894.)

Municipal Corporations—Discharge of Policeman—Hearing.

Under Hudson City Charter, providing that the common council may, by a majority vote, remove a policeman after notice of the charges against him and an opportunity to be heard, the removal of a policeman is illegal, where the common council, without giving him an opportunity to be heard, adopts the report of the committee by which the charges were preferred, and by which the common council directed the charges to be heard, though the policeman had a hearing before such committee.

Certiorari by Martin Vincent against the common council of the city of Hudson and others to review the proceedings of said common council, and its decision and determination thereon, dismissing relator from the police force of said city.- Reversed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

Duntz & Aldcroftt (Mark Duntz, of counsel), for appellant.

Collier, Collier & Browning (D. P. Collier, of counsel), for respondents.

HERRICK, J.

By section 4 of chapter 468 of the Laws of 1872, as amended by chapter 563 of the Laws of 1873, the common council of the city of Hudson is authorized to appoint the chief of police and policemen, not to exceed eight in number. By section 19 of said act, as so amended, it is provided that:

“'The chief of police, and any of the policemen, may be removed by the common council on proof of charges preferred in writing of illegal, corrupt or improper conduct, neglect of duty, disobedience of orders, or neglect to comply with the rules and regulations prescribed or enacted by the common council for the government and discipline of such policemen of which he has notice. The common council may prescribe the time, place and manner of services of the chief of police, and of each of the policemen, and make such rules and regulations for the government and discipline of such policemen as it may deem proper and expedient for the good government of the city.”

Section 40 of the same act, as amended by chapter 379 of the Laws of 1876, provides as follows:

“The common council may remove from office by a vote of a majority of the members thereof, any officer appointed by the common council. * * * But nothing herein contained shall authorize' the removal of any chief of police or policeman now in office except in the manner, and for the causes mentioned in section 19 of this act, and no chief of police or policeman shall be removed until he shall have had notice of the charges preferred against him and a reasonable opportunity afforded him after such notice of being heard in his defense by counsel or otherwise.”

The relator has been for a number of years a member of the police force of the city of Hudson. On the 19th day of March, 1893, a, burglary was committed in the city of Hudson, and it was alleged that at such time the relator was absent from his post of duty without leave. What was known as the police committee of the common council of said city, hearing of said complaint against the *941relator, and having presented to it one or more affidavits in relation thereto, preferred charges against the relator of gross neglect of duty as a police officer, of disobedience of, and want of attention to, the orders and directions of the chief of police; specifications of such charges were attached thereto, which charges and specifications were served upon the relator. The relator appeared before the committee, and, through his counsel, made various objections to the jurisdiction and authority of the committee to investigate such charges; notwithstanding which, the investigation proceeded, and evidence was taken. The committee made a report of their proceedings to the common council, upon the receipt of which the common council passed two resolutions,—one, “that such, report be received and placed on file, and the action of said committee set forth in said report, to be fully indorsed and approved by the common council;” and the other, “that the police committee be directed to proceed with the investigation of the charges against Chief Snyder and Officers Vincent and Shepard, and report the result of such investigation at a subsequent meeting of the common council, with such recommendations as the police committee shall deem advisable.” That thereafter, on the 5th day of April, the said police committee had a hearing upon such charges, of which notice was duly given to the relator, who appeared thereat in person and by counsel. That thereafter, on the 29th day of April, said police committee submitted their report to the common council, with the evidence that had been taken before them, and their findings and recommendations thereon, and wherein they found that the charges against the relator had been sustained, and recommended that he be dismissed from the police force; and thereupon, by the vote of the common council, the report of the committee was approved and adopted, and, by a resolution of the common council, the relator was dismissed from the police force of the city of Hudson.

The relator did not appear before the common council, neither does it appear that he was notified of any hearing by said common council, or notified or requested to be present before them upon the hearing of such charges. Proceedings by boards of police commissioners, or by a common council, in the trials of policemen and other kindred officials, where the powers of such commissioners or boards are largely disciplinary, are not regulated by the same degree of formality that is required upon trials of criminal charges before ordinary tribunals of justice. People v. Board of Police Com’rs, 93 N. Y. 97. Errors and irregularities that would be fatal in ordinary courts of justice are overlooked in proceedings of this kind, so long as the court can see that the substantial rights of parties accused have not been violated, and that the requirements of the statute clothing such bodies with the power to try municipal servants have been substantially complied with. The common council of the city of Hudson had power to make rules and regulations for the government of the police force of the city, and had power to try offenders against such rules; they could take and delegate the taking of testimony, upon the trial of such charges, to a committee of their body. People ex rel. Flanagan v. Board of Police Com’rs, 93 *942N. Y. 97; People ex rel. McCarthy v. Board of Police Com’rs, 98 N. Y. 332. In that respect these proceedings were not irregular. The statute heretofore cited provides that:

“A policeman shall not be removed until he has been notified of the charges preferred against him, and a reasonable opportunity afforded him after such notice, of being heard in his defense by counsel or otherwise.”

He had notice of the hearing before the committee, and appeared thereat, and if the proceedings before such committee are to be regarded as the hearing or trial that the relator is entitled to under the statute, then it seems to me that one of the substantial rights that every person is entitled to has been infringed upon; that is, he was tried by his accusers. It is a fundamental principle of law, as I understand it, that no man or body of men can be both accusers and judges; the committee preferred charges upon their own motion, and then proceeded to try them. I do not think, however, that these proceedings before the committee were the trial contemplated by the statute that contemplates a trial by the common council. As I have stated, it undoubtedly had the power to delegate to a committee the taking of testimony in the proceedings, which could be reported to the common council, and then the hearing or trial had thereon before the whole common council, or a quorum thereof, as was done by the police commissioners in the case of People ex rel. Flanagan, above cited.

Assuming that the police committee in this case, notwithstanding they had made charges, could take evidence, and report the same to the common council, to be passed upon by them, still the statute I do not think has been complied with. The relator, it appears, became a member of the police force about the 1st of January, 1873, and the statute provides that no person then in office “shall be removed, except upon charges of misconduct, or until he has received notice of the charges against him, and a reasonable opportunity afforded him after such notice of being heard in his defense by counsel or otherwise.” Of course, that hearing must be before the body that is to try him. A hearing before a committee of the common council, consisting of a portion of its members, is not the common council that is to try him, and is not a hearing before the common council. The report of the committee, with the evidence, so presented to the meeting held April 29th, was acted upon, and the relator dismissed at the same meeting. That was not giving him a reasonable opportunity to be heard. The proceedings of the common council should therefore be reversed and set aside, with $50 costs and disbursements. All concur.