Fiitoh, J.
I am unable to resist the conviction that, upon the record returned to us in this case, the charge against the relator was wholly and essentially unproved, and that lie was guilty of no offense whatever. The charge was
“
conduct
unbecoming an officer,” and the specification that at a named date and place he was so much under the influence o± liquor as to be unfit for duty. The facts established were that he had been upon the force for upwards of fifteen years, and that during all that period his record had been a very excellent one, the sergeant under whose command he had served saying, upon the hearing, and expressing the greatest pleasure m making the declaration, that he was a first-class officer. For fifteen years he had drank no intoxicating liquor, so that there was about him no taint of evil habit to suggest a possible yielding to temptation. If the fact be deemed somewhat remarkable, it is significant that nothing to the contrary was found in the record of his service, and the sergeant, who must have known him thoroughly and well, vouched for his truthfulness by saying that lie thought his statements were correct in every particular. The relator was on duty during the railroad strike in the early days of the year of 1889, when nearly all the streetcars in the city were abandoned by their drivers, and their movement resisted. For five days lie had been continuously employed in guarding the cars and repelling angry and dangerous attacks upon them. On the morning of the fifth day, which was severely cold, he was ordered to the Sixth Avenue Railroad station without opportunity to get his breakfast, and was detailed to guard the moving cars, upon the front platforms of which he rode up and down until the middle of the afternoon, when he became faint and ill. He reported his sickness to Sergeant Horton, who says he took him off the cars and advised him to report sick, but relator said that in view of the trouble he thought it would be mean to do so, and persisted in staying on duty. Later he took one drink of brandy and peppermint to relieve his illness, and, not being accustomed to it, some degree of intoxication followed. The surgeon saw him at eight o’clock and says “ his breath smelled slightly of liquor; he could walk steadily and talk coherently; his speech was a little thick; I was of the opinion that he had been drinking; he was not intoxicated at the time.” The sergeant says he reported sick after the strike was over. On
this state of facts he was dismissed from the force, and the question raised is whether they furnished any evidence of breach of discipline or violation of the rules of the department.
The General Term, with undisguised reluctance, affirmed the order upon the authority of our decision in
People ex rel.
v.
French
(110 N. Y. 494). I think that they misunderstood its scope and meaning, and viewed it as establishing a rigid and arbitrary rule which left the action of the police commissioners practically without ..restraint. To that decision we shall steadily adhere. Its conclusion we do not desire to change, and its doctrine, which, we then approved, seems to us still entirely correct and sound. That doctrine was that where there was any evidence of the offense charged, or the facts admitted of any inference of guilt, we should follow the conclusion of the commissioners in view of their peculiar responsibilities and their larger opportunities of arriving accurately at the truth. Upon the facts in that case an inference of guilt, of a breach of discipline and conscious and voluntary violation of the rules, was not only possible, but entirely natural and just. The proof showed that the officer was so badly intoxicated, so utterly under the influence of liquor, as to throw grave doubt upon his statement that his condition was due to the single drink of brandy and ginger given him by a third person, and to indicate that the sickness of which he then complained was a pretense to hide an existing intoxication. Conscious of the lameness of that explanation, the relator in that case claimed that he had previously taken two doses of bromide of potassium and ammonia, but evidence was given showing that the consequent medicinal effect would not explain, or help to explain, the condition of gross and palpa^ ble intoxication which existed. On such a state of facts the excuse of sickness and of brandy taken as a medicine — always suspicious and doubtful unless under the clearest and strongest proof—became little more than a pretense. The inference or guilt was at least a possible one, and we declined to interfere with it. And so, in this case, if a similar inference is at all possible, if a reasonable man can reasonably infer a conscious
breach of discipline or violation of rule from any or all the facts, then Ave must hold the conviction to have been justified; but if such an inference is not possible, if there is no shadoAV of justification for it, the case presents a pure question of law,, a judgment rendered without any evidence to support it, Avhiclk ahvays requires at our hands a reversal.
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Fiitoh, J.
I am unable to resist the conviction that, upon the record returned to us in this case, the charge against the relator was wholly and essentially unproved, and that lie was guilty of no offense whatever. The charge was
“
conduct
unbecoming an officer,” and the specification that at a named date and place he was so much under the influence o± liquor as to be unfit for duty. The facts established were that he had been upon the force for upwards of fifteen years, and that during all that period his record had been a very excellent one, the sergeant under whose command he had served saying, upon the hearing, and expressing the greatest pleasure m making the declaration, that he was a first-class officer. For fifteen years he had drank no intoxicating liquor, so that there was about him no taint of evil habit to suggest a possible yielding to temptation. If the fact be deemed somewhat remarkable, it is significant that nothing to the contrary was found in the record of his service, and the sergeant, who must have known him thoroughly and well, vouched for his truthfulness by saying that lie thought his statements were correct in every particular. The relator was on duty during the railroad strike in the early days of the year of 1889, when nearly all the streetcars in the city were abandoned by their drivers, and their movement resisted. For five days lie had been continuously employed in guarding the cars and repelling angry and dangerous attacks upon them. On the morning of the fifth day, which was severely cold, he was ordered to the Sixth Avenue Railroad station without opportunity to get his breakfast, and was detailed to guard the moving cars, upon the front platforms of which he rode up and down until the middle of the afternoon, when he became faint and ill. He reported his sickness to Sergeant Horton, who says he took him off the cars and advised him to report sick, but relator said that in view of the trouble he thought it would be mean to do so, and persisted in staying on duty. Later he took one drink of brandy and peppermint to relieve his illness, and, not being accustomed to it, some degree of intoxication followed. The surgeon saw him at eight o’clock and says “ his breath smelled slightly of liquor; he could walk steadily and talk coherently; his speech was a little thick; I was of the opinion that he had been drinking; he was not intoxicated at the time.” The sergeant says he reported sick after the strike was over. On
this state of facts he was dismissed from the force, and the question raised is whether they furnished any evidence of breach of discipline or violation of the rules of the department.
The General Term, with undisguised reluctance, affirmed the order upon the authority of our decision in
People ex rel.
v.
French
(110 N. Y. 494). I think that they misunderstood its scope and meaning, and viewed it as establishing a rigid and arbitrary rule which left the action of the police commissioners practically without ..restraint. To that decision we shall steadily adhere. Its conclusion we do not desire to change, and its doctrine, which, we then approved, seems to us still entirely correct and sound. That doctrine was that where there was any evidence of the offense charged, or the facts admitted of any inference of guilt, we should follow the conclusion of the commissioners in view of their peculiar responsibilities and their larger opportunities of arriving accurately at the truth. Upon the facts in that case an inference of guilt, of a breach of discipline and conscious and voluntary violation of the rules, was not only possible, but entirely natural and just. The proof showed that the officer was so badly intoxicated, so utterly under the influence of liquor, as to throw grave doubt upon his statement that his condition was due to the single drink of brandy and ginger given him by a third person, and to indicate that the sickness of which he then complained was a pretense to hide an existing intoxication. Conscious of the lameness of that explanation, the relator in that case claimed that he had previously taken two doses of bromide of potassium and ammonia, but evidence was given showing that the consequent medicinal effect would not explain, or help to explain, the condition of gross and palpa^ ble intoxication which existed. On such a state of facts the excuse of sickness and of brandy taken as a medicine — always suspicious and doubtful unless under the clearest and strongest proof—became little more than a pretense. The inference or guilt was at least a possible one, and we declined to interfere with it. And so, in this case, if a similar inference is at all possible, if a reasonable man can reasonably infer a conscious
breach of discipline or violation of rule from any or all the facts, then Ave must hold the conviction to have been justified; but if such an inference is not possible, if there is no shadoAV of justification for it, the case presents a pure question of law,, a judgment rendered without any evidence to support it, Avhiclk ahvays requires at our hands a reversal.
Let us recur then to the facts. An officer who had served' on the force for fifteen years, AAÚth a record and reputation every Avay excellent, avIio, during that long period liad never once drank intoxicating liquor and whose truthfulness his commanding officer does not hesitate to affirm, is engaged, for five days, in a struggle Avith strikers aaIio are striving, often Avith violence, to prevent the running of the street-cars. On the morning of the fifth day, through the severe cold of the AAÚnter and Avithout opportunity for breakfast, he is sent to his difficult and perilous work. BetAveen the hours of three and four o’clock in the afternoon he becomes faint and ill. Exhaustion and cold and lack of customary food produce their natural result. He complains of illness to his sergeant. Tile latter, aaIio has seen and Avatched him, feels no doubt of the fact and takes him off the cars and advises him to report sick. That meant an abandonment of the relator’s duty in an hour of great peril. He declines to do so. He determines to continue on duty and stand up to his work, in spite of Aveakness, and suffering. At 4.20 in the afternoon he is perfectly sober, but soon after he takes one drink of brandy and peppermint and it overcomes him. At 5.30 he appears to be and is someAvliat under the influence of liquor and is taken to the station-house. At eight o’clock, Avlien examined by the surgeon, he is not intoxicated. Summing it all up, it comes to this: An officer on duty when the service is necessary and perilous,, takes brandy and peppermint in a single instance, as a medicine to palliate suffering and enable him to continue in the-performance of his duty. Bnfortunately it produces a temporary intoxication and fails as a remedy. Is that intoxication a breach of discipline and a violation of the rules
%
Clearly it is not, if that is the truth about it. Can anybody say, with a.
grain of justice in saying so, that this was “ conduct unbecoming an officer? ” That was-the charge formally presented, and it requires us to consider the nature and quality of Jiisact, the jmrpose and aim of what he did, -the character of his conduct. That conduct was not unbecoming an officer. What he consciously did, what he meant to do, what he tried to accomplish and thought he could, was to brace his exhaustion and weakness with a temporary stimulant so as to enable him to continue in the performance of his duty. He took it only and solely as a medicine and for its useful effect. H there was the least ground for doubting that, I should vote for his removal. Unfortunately he misjudged. Consequences came which he did not anticipate and the reverse of what he ■expected, and, while his conduct was right, he is punished for ■such unexpected consequences. It is said that he pleaded guilty. That is not true in any just or reasonable sense. He ■did admit that while on duty he was under the influence of liquor. That is all he admitted, and he did so in connection with other facts which amounted, not to a plea of guilty, but to an assertion of innocence. And so the charge against him was wholly unproved. There was not the least evidence to sustain it. If I could see in his past habits, in his official record, in the circumstances detailed or surrounding his alleged offense, the slightest ground for an inference that he was not really :and truly ill, that he took the brandy as a drink and not as a medicinal stimulus, that he sought liis own pleasure and not •strength to perform his duty, that he acted recklessly and without reasonable motive, I should, be prompt to uphold the decision of the commissioners. Almost invariably sickness is made the excuse for intoxication. It is right to suspect it, to challenge it severely, to reject it almost uniformly. But when, beyond any question or doubt, it is the truth, and the ■dose of brandy has been resorted to in a sudden emergency, from a commendable motive, and with a reasonable expectation that it will sustain the failing ability to perform duty, there is no breach of discipline, there is no conduct unbecoming an officer, and it does not become such because a
partial intoxication supervenes wliich no one could reasonably have anticipated. These views lead to a reversal of the order.
The order of the General Term and of the commissioners should be reversed, with costs in this court and the Supreme Oourt.