POTTER, J. :
This case comes before the court upon a return to a certiorari issued to the board of police commissioners of the city of New [334]*334York, to review a judgment convicting the relator of a charge preferred against him and removing him from the office of a captain of the police force.
The charge upon which the relator was tried and convicted was as follows :
CENTRAL DEPARTMENT, |
New YorK, November 13, 1877. j
“To the board of police of the police department of the city of New Yorh:
“I hereby charge Jacob Siebert, captain of the thirty-first precinct, with conduct unbecoming an officer.
“ SPECIFICATIONS. — In this, to wit: On the eighteenth of October, last past, patrolman Mark Haggerty, of the thirty-first precinct, was on trial under charges before the board of police, and the said Jacob Siebert was a witness, and was sworn in the case. He was shown a written letter or communication, addressed to the board of inspectors of the fourth district, and was asked, “ have you ever seen that letter before ? ” to which he falsely replied, “no, sir;” on being asked the question, “it has never 'been shown to you before ? ” he falsely replied, “no, sir;” and he further falsely stated, “the letter I did not see.” Whereas, in truth and in fact, he had seen the letter, and it had been shown to him, and he had read it and made comments upon it. The testimony of said Siebert was important and material to the issue in the case against Haggerty, and was willfully false, and in violation of rule 644 of the manual of the police department.
“ GEORGE W. WALLING,
“ Witnesses: Superintendent.
“ Mark Haggerty, thirty-first precinct.
“ Sergeant Cass, thirty-first precinct.
“ Sergeant Larkin, thirty-first precinct.
“ Daniel McLaughlin, thirty-first precinct.
“ Inspector Thorne, fourth district.
“ Henry Botts, thirty-first precinct.”
No question is made by the relator, that he had not due notice of the charge and of the time and place of the trial, and of the orderly conduct of the trial.
[335]*335The real question in this case is much moré important than the manner of trial or the regularity of the proceedings.
It is a question of jurisdiction, and of the right of the respondent to create an offence, and to convict and punish a person charged with the commission of the offence so created.* It is, in brief, a combination of legislative, judicial and executive powers in the respondent.
That state of things is no doubt necessary to secure an efficient organization of the police force of a large city, and the courts are not inclined to interfere upon slight occasion with its practical operation; but it seems to me the action of the respondent in this case involves questions of a very serious nature.
We will proceed to consider what offence the respondent has convicted the relator of, and whether the respondent has created or had the right to create or the right to try such offence. The charge preferred against the relator “ is conduct unbecoming an officer,” in this, that on a trial of one Haggerty, the relator, who was a witness, testified falsely in relation to having seen a certain letter referred to upon such trial.
The charge is, virtually, false swearing as a witness upon a trial. It is not with any violation or neglect of any duty, official or otherwise, arising from having seen or known of the letter or in anywise connected with it.
All the pertinent evidence upon the trial had sole relation to that issue, whether it was true or false that the relator had seen the letter, and that alone was the question decided jsy the respondent.
Now, has the board any power or right to create or declare the offence charged upon the relator ? Whatever of power the respondent possesses in that regard is derived from chapter 335, Laws of 1873. That act creates the respondents and confers upon them such powers as-they have. By section 41 of that act the government and discipline of the police department shall be such as the board may, from time to time by rules and regulations, prescribe.
All the rules and regulations must be for the government and discipline ; beyond these purposes and objects the board cannot prescribe any rule or regulation. The rules and regulations can [336]*336have no binding force upon the police officers except while upon duty and acting officially.
Accordingly, it will be seen by reference to section 55 of that act, which contains a specification of the offences for which the board may inflict punishmeni, that except the first class (which we will notice further on) they all relate to the government and discipline of the police, and are for violations or neglects of their duties as policemen.
That section provides that the board of police shall have power, in its discretion, on conviction of a member of the force of any legal offence or neglect of duty or violation of rules, or neglect or disobedience of orders, or absence without leave, or any conduct injurious to the public peace or welfare, or immoral conduct or conduct unbecoming an officer, or other breach of discipline, to punish, etc.
It will be observed, after specifically naming several offences against discipline and duty, it concludes with this language, “ or other breach of discipline.”
The design of these two sections is apparent and consistent. It is that the board of police may make rules of discipline and duty for the policemen, and try and punish those who break them.
It was not shown that the board had ever made a rule against false swearing or perjury by a policeman while testifying as a witness. The board probably did not contemplate that any policeman would or could testify as policemen, or while on duty as such. The board no doubt contemplated that if a policeman was called to testify as a witness in any controversy between another policeman and the board, or between a policeman and a citizen or the city, or between any other parties, he would testify as any other citizen, and under the same pains and penalties for false swearing.
The oath taken by the relator was, in no sense, an official oath as policeman, but was the same oath that was taken by other witnesses not officers on the trial referred to, and that oath required all the witnesses alike, whether officers or private citizens, to tell the truth in relation to the matters in issue.
The true issue upon the trial was, whether the relator had testified falsely or committed perjury upon the trial of Haggerty. [337]*337Tbat was the question tried and decided by the respondent. It is too far fetched and puerile to call the trial of so imporant a question a mode of ascertaining whether the relator had been guilty of conduct unbecoming an officer.
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POTTER, J. :
This case comes before the court upon a return to a certiorari issued to the board of police commissioners of the city of New [334]*334York, to review a judgment convicting the relator of a charge preferred against him and removing him from the office of a captain of the police force.
The charge upon which the relator was tried and convicted was as follows :
CENTRAL DEPARTMENT, |
New YorK, November 13, 1877. j
“To the board of police of the police department of the city of New Yorh:
“I hereby charge Jacob Siebert, captain of the thirty-first precinct, with conduct unbecoming an officer.
“ SPECIFICATIONS. — In this, to wit: On the eighteenth of October, last past, patrolman Mark Haggerty, of the thirty-first precinct, was on trial under charges before the board of police, and the said Jacob Siebert was a witness, and was sworn in the case. He was shown a written letter or communication, addressed to the board of inspectors of the fourth district, and was asked, “ have you ever seen that letter before ? ” to which he falsely replied, “no, sir;” on being asked the question, “it has never 'been shown to you before ? ” he falsely replied, “no, sir;” and he further falsely stated, “the letter I did not see.” Whereas, in truth and in fact, he had seen the letter, and it had been shown to him, and he had read it and made comments upon it. The testimony of said Siebert was important and material to the issue in the case against Haggerty, and was willfully false, and in violation of rule 644 of the manual of the police department.
“ GEORGE W. WALLING,
“ Witnesses: Superintendent.
“ Mark Haggerty, thirty-first precinct.
“ Sergeant Cass, thirty-first precinct.
“ Sergeant Larkin, thirty-first precinct.
“ Daniel McLaughlin, thirty-first precinct.
“ Inspector Thorne, fourth district.
“ Henry Botts, thirty-first precinct.”
No question is made by the relator, that he had not due notice of the charge and of the time and place of the trial, and of the orderly conduct of the trial.
[335]*335The real question in this case is much moré important than the manner of trial or the regularity of the proceedings.
It is a question of jurisdiction, and of the right of the respondent to create an offence, and to convict and punish a person charged with the commission of the offence so created.* It is, in brief, a combination of legislative, judicial and executive powers in the respondent.
That state of things is no doubt necessary to secure an efficient organization of the police force of a large city, and the courts are not inclined to interfere upon slight occasion with its practical operation; but it seems to me the action of the respondent in this case involves questions of a very serious nature.
We will proceed to consider what offence the respondent has convicted the relator of, and whether the respondent has created or had the right to create or the right to try such offence. The charge preferred against the relator “ is conduct unbecoming an officer,” in this, that on a trial of one Haggerty, the relator, who was a witness, testified falsely in relation to having seen a certain letter referred to upon such trial.
The charge is, virtually, false swearing as a witness upon a trial. It is not with any violation or neglect of any duty, official or otherwise, arising from having seen or known of the letter or in anywise connected with it.
All the pertinent evidence upon the trial had sole relation to that issue, whether it was true or false that the relator had seen the letter, and that alone was the question decided jsy the respondent.
Now, has the board any power or right to create or declare the offence charged upon the relator ? Whatever of power the respondent possesses in that regard is derived from chapter 335, Laws of 1873. That act creates the respondents and confers upon them such powers as-they have. By section 41 of that act the government and discipline of the police department shall be such as the board may, from time to time by rules and regulations, prescribe.
All the rules and regulations must be for the government and discipline ; beyond these purposes and objects the board cannot prescribe any rule or regulation. The rules and regulations can [336]*336have no binding force upon the police officers except while upon duty and acting officially.
Accordingly, it will be seen by reference to section 55 of that act, which contains a specification of the offences for which the board may inflict punishmeni, that except the first class (which we will notice further on) they all relate to the government and discipline of the police, and are for violations or neglects of their duties as policemen.
That section provides that the board of police shall have power, in its discretion, on conviction of a member of the force of any legal offence or neglect of duty or violation of rules, or neglect or disobedience of orders, or absence without leave, or any conduct injurious to the public peace or welfare, or immoral conduct or conduct unbecoming an officer, or other breach of discipline, to punish, etc.
It will be observed, after specifically naming several offences against discipline and duty, it concludes with this language, “ or other breach of discipline.”
The design of these two sections is apparent and consistent. It is that the board of police may make rules of discipline and duty for the policemen, and try and punish those who break them.
It was not shown that the board had ever made a rule against false swearing or perjury by a policeman while testifying as a witness. The board probably did not contemplate that any policeman would or could testify as policemen, or while on duty as such. The board no doubt contemplated that if a policeman was called to testify as a witness in any controversy between another policeman and the board, or between a policeman and a citizen or the city, or between any other parties, he would testify as any other citizen, and under the same pains and penalties for false swearing.
The oath taken by the relator was, in no sense, an official oath as policeman, but was the same oath that was taken by other witnesses not officers on the trial referred to, and that oath required all the witnesses alike, whether officers or private citizens, to tell the truth in relation to the matters in issue.
The true issue upon the trial was, whether the relator had testified falsely or committed perjury upon the trial of Haggerty. [337]*337Tbat was the question tried and decided by the respondent. It is too far fetched and puerile to call the trial of so imporant a question a mode of ascertaining whether the relator had been guilty of conduct unbecoming an officer.
The respondents might, with quite as good a show of sense and propriety, have charged the relator with conduct unbecoming an officer, specifying that he committed murder or rape, some time and place when off duty, and have tried him for that offence. And this brings us to the consideration of the exceptional class of offences mentioned in said section 55, for which the respondents may remove policemen upon conviction. Besides the power to try and remove policemen for a violation or neglect of duty, the respondents have the power to remove any member of the police force upon conviction of any legal offence.
By legal offences are meant crimes and misdemeanors enacted by the legislature, or existing at the common law. When a policeman has been convicted of any of these offences by the tribunal, and in the manner prescribed by law, the respondent may remove for such conviction.
The idea that the board of police may try and convict persons charged with perjury or murder, arson, or other legal offence, is simply preposterous. Those offences can only be tried by a jury, and in the mode provided by law. Neither an act of the Legislature, or the consent of the accused, will justify a trial for these offences in any different manner.
The word “ conviction,” as used in this section, has the same meaning as when used in similar statutes. It means a judgment of guilty pronounced against the accused by the tribunal, and in the mode prescribed by law. (Blaufus v. People, 69 N. Y., 107; Schiffer v. Pruden, 64 id., 47.)
The conclusion is, therefore, that the respondents may, under section 55, supra, remove their subordinates, upon conviction, for two classes of offences: the one, offences against the laws of the land ; and the other, offences against the rules of discipline. For the former class conviction must first be had in the courts of justice • and, in the latter, in the court of the board of police.
The relator was convicted and punished for an offence belonging to the former class, in the court only competent to convict [338]*338for offences of the latter class. The conviction of the relator was without jurisdiction, and should be reversed.
Brady, J.:
The differences between my brethren are irreconcilable, and create a doubt of the propriety of the judgment of the respondents. The charge made is sought to be established by proof that the relator swore falsely on a trial, on which he was examined as a witness, and as to a material fact, and the effect of the judgment against him must be that he did so testify, because of the character of the evidence against him. There can be no doubt of the power of the commissioners to try and punish an officer for falsehood in reference to his duties, because it would be embraced in the charge of conduct unbecoming such a person j but that is a very different thing from the charge of false swearing, which must be more serious in its consequences, if declared to have been committed. The line is close, I admit, but in such a case I think the doubt should be to the benefit of the relator, leaving the respondents to a further review, if one should be desired. I place my concurrence with Judge Potter on the proposition, that the commissioners cannot investigate the charge of falsehood by resorting to proof of what the relator said when he was under oath as a witness, and then assailing it by testimony calculated to show that the statement made as a witness was f^lse. The legal effect of the crime of perjury does not flow from such a trial; but the moral effect is the same while the element of the jury was not invoked and was absent.