People Ex Rel. Metcalf v. . McAdoo

77 N.E. 17, 184 N.Y. 268, 22 Bedell 268, 1906 N.Y. LEXIS 1361

• Court: New York Court of Appeals
• Decided: March 13, 1906
• Status: Published

Opinion

Vann, J.

It is provided by the statute governing the subject that “ any member of the police force being of the age of fifty-five years who has or shall have performed duty on such police force as aforesaid for a period of twenty years or upwards, upon his own application in writing, may, or upon a certificate of so many of the police surgeons as the police commissioner may require, showing a member of whatever age who has served twenty years is permanently disabled, physically or mentally so as to be unfit for duty, shall, by order of the police commissioner, be relieved and dismissed from said force and service and placed on the roll of the police pension fund * * (Charter, § 355.) Section 357, which relates to pensions, requires the certificate as to that subject to be made “ by so many of the police surgeons as the police board may require ” and to set forth “ the cause, nature and extent of the disability, disease or injury ” of the member retired upon pension. It also provides in substance that without such a certificate “ no member shall be retired upon pension or be pensioned.”

The commissioner ha,d no power to remove the relator without a certificate of the examining surgeons that he was permanently disabled so as to be unfit for duty. The statute does not say unfit for “full” duty, but the certificate does, and in this respect it follows the terms of the order requiring the relator to be examined. By that order the surgeons were directed to make the examination with reference to ability “ to perform full police duty,” which is a mater'al departure from the language of the statute.

Fitness for police duty means the ability to discharge with average efficiency the duty of the grade to which the member belongs. A large police force must have some members of unusual ability who are peculiarly fit to discharge the duties of their positions. It must have some of a low degree of efficiency who are barely able to fill the requirements of the office. The statute refers to neither of these classes, but to the great mass of the force, representing its average efficiency. This idea is not bxpressed by the word used by the commissioner and the surgeons, which qualifies and extends the statute. “ Full ” means complete of the highest degree, pointing toward perfection. That is not the standard of the statute, and the false standard erected by the commissioner and followed by the surgeons may have resulted in injustice to the relator. He may be able to perform police duty, as he has for thirty-eight years with a faultless record of faithful service, without being able to perform full police duty or every conceivable duty, including service on the mounted squad, for instance. The word interpolated is liable to mislead even those who wish to do right, and it may be made a pretext to cover abuses by those who wish to do wrong. As was well said below: “ One physically unfit to be a patrolman or a rounds-man might be entirely fit to be an inspector, a captain or a sergeant. * * * He might not be as efficient as a younger man; he might not he fit to do some minor or particular thing, and in that sense he might not be fully fit, and yet he might be substantially fit for duty and the surgeons would in honesty have to so certify. But this word ‘ full ’ in their certificate may refer to some trivial thing for which they would not certify the subject substantially unfit for duty, but might be persuaded to certify him unfit for 1 full ’ duty. A very little thing might be all that this word would be used for. If the surgeons may interpolate it, they are enabled to make a distinction which rests in their own minds only and is not revealed.”

It is true that the forepart of the certificate uses the language of the statute, but that general clause, in accordance with the usual rule of construction, yields to the specific words which follow, so that the effect of the certificate as a whole is that the relator .is unfit for “ full police duty,” which is precisely what the commissioner directed the surgeons to ascertain and all that they stated in their report accompanying the certificate. The relator could not be dismissed simply for disability unless he was at once placed upon the pension roll. (§ 355.) He could not be placed on the pension roll without a certificate as to the “ cause, nature and extent of the disability.” (§ 357.) In stating the extent of his disability, which was an essential part of the certificate, it was described as “ such as to unfit him for the performance of full police duty.” The standard adopted, therefore, was fitness to perform full police duty, which does not conform to the statute.

Moreover, the statute calls for the certificate “ of so many of the police surgeons as the police commissioner may require.” This may include all the surgeons on the force in the discretion of the commissioner, but whether a part or all are designated the statute contemplates that each one selected and present shall personally examine, and that at least a majority of those examining shall certify to the disability. This requirement is not satisfied by the action of a board, authenticated only by the signatures of the president and secretary. The old statute required a certificate of the board of surgeons,” but-that was changed in-the present charter, and it is the only material change made in the section in which it appeared. No board is now created by law, but only by order of the commissioner, and the certificate does not state how many of the forty police surgeons were present, or how many voted for the resolution adopting it. The statute does not say that the board of surgeons shall certify, but that the surgeons named for the duty shall certify, which means that they shall personally make the statement in writing on the responsibility of their own signatures. A large board acting by resolution and the vote of a majority may make a certificate which the individuals composing the board or even a majority of them would not sign. A weak or careless man may consent to a. wrong if done in the name of another, when he would not consent to it over his own name. While we have no reason to believe that this was the fact - in the case, before us, it is our duty to consider what may be done by a board, as distinguished from individual action. The requirement of a certificate is a safeguard to the members of the force, held by the statute as a shield between them and compulsory removal without a trial. . It is not only an appeal to the conscience of every surgeon who signs it to certify the truth, the whole truth and nothing but the truth, but it also identifies- those who sign and charges each with responsibility for his action. The certificate should be the personal act of each surgeon who aids-in making it and not one that may conceal the persons acting through the signatures of the officers of a board.

Further discussion is not required, as both questions were fully considered by the courts below, and we announce as our conclusion that the commissioner acted without jurisdiction for the want of such a certificate as the statute requires. The order should be affirmed, with costs.

Gulden, Gh. J., O’Brien, Haight, Werner and Hisoock, JJ., concur; Willard Bartlett, J., not sitting. ■

Order affirmed.