New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1858-06-21

icrs of the act are termed ogcrsss. And MS pm
ns rule, for tire Interpretation Of st.tuies tns, sAso
TIE saue term or = xsscn u used Ia cuieTen, pttts
Of the sane statute, Il shsl Re deemed % Ssvs the
same ne sBirg unless tie contrary very plsniy sp
pear to have been tie intention Of the Lagsl sare.
Smith StstG.es, 613; James agt- Dubois, haI.'
The general statutory definition, given 10 the Re-
vised Statutes, which il invoked by the prisoner
counsel ia ala ofths construction Insisted upon by N n,
throws but little light upon that point By that stat
ute the term ofenss, when used in stsuta, shall be
construed 70 az offen-e for vb ch aay criminal
punishment may by law be Inflicted. Now, the ques-
ton in controversy a. whether this particular VOCATION
Of the set is punishable crimlnsly. II So the term
offerss applied 10 il, would be in strict accordance
with the statutory definition OF the term. Again, as
already appear the ect itself calls this violation an
0fa,e. Now If the statutory deirition OF that term
one of fore whatever TO settle the question under
examination It is against the construction cOntsnded
for 90 behalf of the prisoner For the term. when
used in spy statute is to be construed to mssn sly
cffense for which crmira punishment msy be In
ficted. e. r. s., $50, sec. 81
Fourth TIE only reasons which have been sug-
gested IA opposition to the views above eNpFessei,
worthy Of conside alton arc bssed upon toe TACT toa
TIE act itself declares three or four OF the VIZ
lstons Of is provisions misIemesnors. Ii Is INSISTED
that the maxim, 8 ErpresSio anus GrclUsi0 ate
rms. in s legal application 10 this statute, would
exclude the assumption that any other ohenses were
designed TO he deemed misdene snors. Ia statute
which appears TO have been carefully drawn up, sod
sill i's provisions carefully considered should be ia
olred to give great force TO tina. maxim. But the
statute under consideration appears upon its face to
have been very csreesy famed, ard to have been
acop'ed without very careful consideration OF its
proyisiops In such csse 1t would not be safe to give
that maxim much force. IL would be muc0 sser to
look at the general scope and purpose OF the act and
TO search there for at expression of the legislative ia
ertion. And in Looking ali the provisions OF the
set in their general scope and tenor, cannot resist
tie conviction that oenses sgsast its provisions were
designed TO be punishable as misdemesnors.
design Of the Legislature to limit punishment of the
violation of the act in question to the penalty Imposed
therein, but to euthcrize proceeding by complaint
before magistrate, or by indictment.
The METROPOLITAN POLICE.
The People on the relation Of W,m Go'nsn vs. The Board
judge RoosEvELr-This case involves necessarily
a single question. TIE seventh section Of tie new
Police act provides that no person shall be removed
from office in the department except upon written
charges, and "ef'er al opportunity shall have been
afforded him of being heard il his defense" And in
the eleventh section it is declared thst mo person
" who shall ever have been removed from the police
force esAblished by this act for cause shall be re-
Appointed by the Board of Police to any office in the
&" said police force. The judgment Of removal rem
dered by the Commissioners sgaiust German, the re
lstor was propounced without notice; or ct least
without any such rotce the law can recognize IN
csse involving such serious consequences to the indl
vdual charged we'll to the public The case states
that the notices Of TIE chsIge made and OF the time OF
trial were never delivered or their contents comnu-
"nicsted TO the men, ard that the relator was not
." aware Of the notice. la a legal sense the relstor
had no opportunity of being heard in his defense
The orc of removal therefore void for want OK
jurisdiction. But although nulli'y in Itself, II in
wolves an apparent deprivation of legal right. IL 10
consequently proper subject OF review, ana oeinS
pa pabIy erroneous ehoud not be allowed TO stand.
Without considering the question whether the relator
has resigned abdicaed or repudsted the ONCE winch
was rendered TO him, or in which he was continued
by the ney law or ary OF the other questions which
ha, haa mad hut ba nd
questions for further advi until the case OF Nc
Cune shall be disposed of, the order under review shall
be quashed on the single ground OF want OF de notice
Judgment of the Supreme Court accordingly al
irmed
HARRIS, J.-At the time the act to establish Met
ropoan Police District went into operation as law,
the rea FOR wss policeman in the City of Newly ork.
The Legislature intended that he should be transferred
from the police force il then existed TO the po-
Ice fierce for which the act provided. It needsa no
new appointment, nor any formal act OF acceptance,
10 con Institute him patrolman OF tue MeuopohLah
Police.
But il did require his consent. He could not be
made psromap, Lor, having become such, be made
TO continue in Office against his will. Whether he, IN
fact reiscted the Office by his subsequent acts or
conduct abandoned it, and thus ceased to be mem
Der Of the new police force is question uDon winch
different views are entertained, and which for the par-
poses of this case is not deemed necessary to dstr
nine.
Whether lie was in Office or not, the Board of Police
entertained charges against him. and assumed to try
him. An order was made that lie be dismissed from
Office. These proceedings we all agree, we're illegal.
charge hsd been preferred aIst the rel9tor Ihe
ofrenss alleged was "williol disobedience OF or'srs
rdinsuboronation" The specifcatior Of the charge
was refusing to obey the orders of bis superior OIL
"cer the 18th day Of June" On the I'D OF uns,
of Police, at specified time ard place, to answer to
~. bs, " sySs5 c an oGer pr sgt
Station House where il received by another per-
sou BY whom il was retained. Neither the notice
its contents came to the knowledge of the relstOr.
The officer who had been charged WITH the service
of the notice snd who had only left such notice at the
station house with persOn who promised to deliver
it TO the relator affidavit Of the service OF
such notice and upon this proof tho Board OF Police
proceeded, at the tune and place specified, to hesr
ard determine the Do the 10Th OF June ~ WAS
adiudged I'll st the charge established. and that
the elator be Dismissed and removed from the service
Of the Department.
BY TIE Eth section Of the act under which these pro
oeedings belc it is declared thst person shall
be removed fom Office, "clcep upon icr.He" charges
"D1eterred against him 10 the Board n Police, aRf
safer an opportunity shall h0rc been Afforded him OF
"6ttag kedrd IN ms deteRse.' The return, made by
tie REALTORS Themselves shows that the reat0r I'd 40
opportunity Of beng heard No notice WAS served
upon him, and he entirely ignorant tbat proceed
ings had been instituted against him until after cen
tence Of dismissal had been pronounced. Under these
circumstances, the Board a Police had no authority
TO proceed. Their order Of dismissal was VOID for
wart Of Jurisdiction. This was equally so. whether,
al the tine tie proceedings instituted the reator
wss in Office or not.
1t is true that, if the relator ~es cot actuallyin
Cficc at the tine the charges preferred against
him the Board of Police would have had no authority
TO try him. even if he bad been served with notice to
appear before them. The proceedings would have
been absolutely void. And yet they should not be
allowed to stand upon record against tue reistor'
We're the only efec. Of sentence Of dismissal 10
remove the party from Office, he would have no right
10 plain Of such seLterce, it, ct the time 1t YVES
pronounced, he was already out Of Office. But 1t Is
declared by the 18th section OF the act Organizing the