The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1859-04-07
IN THE COURT OF APPEALS.

TIE PEOPLE, ON THE RELATION OF JAMES MCUNE
AGAINST THE BOARD OF POLICE OF The MErROPo
Titan POLICE DISTRICT.
Before Hon. Judge S. B. Strong
The alternative mandamus in this case was issued
ne 1lth day Of December, 1857 In that the relator
alleged that by virtue Of the entitled San
olish Metropolitan Police district and to provide for
The government thereof" passed the 11th Of April,
1857 he became, and continued to be- member Of the
police force and pa.roman of the Metropolitan Police dis
ct thst the defendants the Goth of june 1857
justly, unduy and without jurisdiction in that behalf
moved him from Office, and deprived, and continued to
deprive him of the profits and emolumens thereof and
mia arrears of pay since the day of his alleged removal
and refused and continued TO refuse to recognise
him as, or to permit him TO exercise the powers and
duties Of patrolman, and the defendants were CON-
nanaed by such writ to restore him TO such office
and permit him TO exercise IL, and TO take the
rrsbts and pay thereof and discharge his arrears of
pay, 10 show cause the contrary The defendants
naeeed in their return (smong other thngs) that upon
Me passing Of the said act of April 15 1857 the reator
pnbicy withdrew from the police force established by
uLdar such act and resigned his place tbereid
NE 18th Of june 1857, written charges preferred
against the relator averring neglect of duty by him
aDobeyng an order issued by the sergeant of his
cnct whereupon the defendants directed notice of such
charges 70 be served upon the that upon proof
such service and his failure TO appear and answer the
charges three Of the commissioners made and signed an
order which appears from the papers incorporated in the
special verdict to have been in the following words
Dismissed and removed June &C. 1857" They state
nal such proceedings we're had against the reiaor for
te purpose of making and procuring record evidence
N hrs separation from the police force of the Metro
Dohian Police district If that had been their nup
pose 1t seems singular that they should have
proceeded against him for the dobedience order to
report himself for duty What right had the sergeant
make such ORDER what duty could devove upon the
subor onate he had the defendants aese separated
himself from the police oce Besides the or
q the three commissioners that the restor had
In effect abdcated the office, but WAS that be should be
eSmssed ano removed Judgment that one should be
moved from office hich he had held would have
been blunder of which intelligent body as the com
nhsioners would not have been guilty II to me
tas The whole proceedings whatever have the
AHeged object were in effect admission that the Teator
was At the time when it instituted q member of the
exHing police force. The Judgment Of the Commission
ers was, however, entirely Intellectual TO the reator
because no notice OF the procedure upon
I'm nor was It even nomnaly age inst him. The list of
parsons upon whom the officer served the notice. stated
and given by him in his affidavit does include the
naape Of the relator.
James AcVDe, but that has not the same sound
md as the relaor did appear the proof did not au
tAofne any further procedure as to him. The manner
. which the notice is stated been served does In
faes, indicate that never reached the reator
ice was delivered by the witness, who the ger
wee 10 Lieutenant Brewer, at the station house of the
company to which the relator attached Brewer on
tbc same day handed it to Captain Rnner who was com
nander of the company and bad charge of the station
house Rnner locked up the notice in his private drawer
NLd was never delivered, its contents communicated
the relatcr There is no evidence TO show
Informed, or knew, that any change had been made
against him, or that he was 10 be tried for any offence
whatever Handing the notice his superior ocer az
communicated TO him, ii had appeared from the
statement OF the officer himself that ne put paper in
MS chest, and never mentioned ii 70 any Of the per-
sons TO whom was addressed II essential princi
PIE Of justice that no man should be condemned unheard
Or at any rate without giving him an opportunity be
heard In his defence II imputed of the hea-
Sen dees 70 whom the trial punishment of spirits
n the future world confded that he first punished
md then he heard but supposed rule of procedure
was rdicnled and condemned grossly outrageous and
unjust II was maxim OF Senecas that he who decides
against party without hearing him, though he decides
IrRflr &c nj lnQf In fha
Archbishop Of Canterbury where plaintiff alleged and
appeared that his appeal had been decided against him
Without giving him opportunity TO be hoard the Court
Of Kings Bench awarded mandamus to the Arch
bishop requiring him TO give the appellant a hearing
.i.Housh the Chief Justice admitted that the
Archbishop had acted most conscentously In
reference to the matter under consideration, the
Metropolitan Police act provides expressly that
person shall removed except upon written charges
preerred against him to the head Of police and after an
opportunity sha have been afforded him Of being heard
IN bis defence (Sec ~ Surely that requires that the
accused party shal be personally served with CODY of
TIE charges and notice of the time place Of the in
tended trial There is provision for a substituted or
onstruciive service
There have been cases in which IL has been held that
TIE certificate Of public officer upon whom the law
vsves the duty Of serving process sufficient confer
jurisdiction, on the ground that the injured party may
have redress against such officer when he wrong That
however is often productive Of great injustice and the
ought be extended to those who have no spe
ca authority serve such process According TO our
code OF procedure courts do not acquire jurisdiction
N civil cases except from the time Of the the
advertisement. There is provision that a mere
AFFIDAVIT, when there has been actual service
original process is sufficient to confer Jurisdiction Be-
sides the order Of removal does affect the re-
ekors According 10 the certificate OF the clerk of the
com missoners directs that James Mcvne should be dig
Missed and removed from the department Clearly that
wss not judgment against the relator He was not,
therefore, de jare or de facto, removed
II appears from the special verdict that after the at
tempted removal Of the relsor and the 9th OF October
1901 the defendants adopted resolution that such of the
Old force not been disissed from the police in con-
nd hat fhorah da
Cared TO be members Of the Metropolitan Police of this
Ely and entitled to do duty and TO be paid SUCH Az
s 70 Jaw, he was OF course included among those
Wno were declared TO be existing members of the
Yoce, ana he was member SO far az the provi-
osons OF the statute and the action of the sson
sss exended If he was member then az conrse
o. If nes,, ol tne last mentioned resolution on the
~ VI Decemoer iSo7, could deprive him of his Office
He could not then be dismissed without ,r,a, D., &C.
nhad were acting as public officers may be
still insist that the reator never in fact ps"c,
office or that he did he denuded himseif of IL nv he
refusal, until July, to act under the new Board MO
have alluded thus principally 10 Inc .l,o-ro,,,.
mandamus and the return to 1t by the defendant. Thr
was subsequently plea TO return 70 which this was
reply and that there was reoinder The suho was
tai issue raised by the peadings whether the re-
taor had not by continuing to act under the old Board
AFTER the passage OF the Metropolitan Police act and omit
tng TO take new oath OF Office forfeited any clam TO be
considered patroman of the district. The facts
eeafns upon this question stated special verdict
found at the Circuit Court, and the inference drawn
r rsom .nem was properly submitted TO the Court
=, me s supreme Court decided the question adversely
~ e ueendans, and directed that peremptory manda
ss shoua Issue conformably the application Of the
rs as stated in the alternate writ 10 which have
eclore alluded appears by the special verdict that the
&c ~ ~. s o sae lsth Of September, 1854, duly appoint
vy e nen Doa5o Of Police Commissioners Consisting
tne City judges and sworn as policeman, in accord
Ance WIN he ao Of April 10, 1854 entitled "An act in
Ienton 70 the romeo department the CITY and county OF
New York" He was attached TO the Fourtssnth wsrd
patrol district, under Capt Kssner and oontioned y, 40
duty as policeman Of that dsrct until and was engaged
IN the performance OF such duty on tho l5b If ~,
1851 On that day the act constituting the Me,ropolan
Police district was passed. The new district VIVA an eY
tension Of the old one, and comprehends the conn. -
Kings, Richmond and Westchester, as well the cy and
county Of New York. IL changed the names Of The
various officers composing the active and efficient
force but az was said by Judge DEMO In the case Of the
People vs. Draper, Q5tb New York R., 1927 "the su.
pernepdento OF police captains sergeants and patromen
mentioned In the hetropQItan Police BILL officials OF
tae same character, possessing substantially the