Bd. of Eire Com'rs of City of Newark v. Lyon

• Decision Date: 19 November 1891
• Citation: 53 N.J.L. 632,23 A. 274
• Parties: BOARD OF EIRE COM'RS OF CITY OF NEWARK v. LYON. SAME v. JOHNSTON.
• Court: New Jersey Supreme Court

23 A. 274

53 N.J.L. 632

BOARD OF EIRE COM'RS OF CITY OF NEWARK

v. LYON.

SAME

v. JOHNSTON.

Court of Errors and Appeals of New Jersey.

Nov. 19, 1891.

(Syllabus by the Court.)

Error to supreme court.

Certiorari at the suit of Henry A. Lyon and Alexander Johnston against the board of fire commissioners of the city of Newark to review a resolution dismissing plaintiffs from service as firemen. Resolution set aside. Defendants bring error. Reversed.

Joseph Coult, for plaintiffs in error.

Joseph A. Beecher, for defendants in error.

SCUDDER, J. The facts in these cases are fully stated in the opinion of the supreme court, (20 Atl. Rep. 757,) and the several statutes which govern them are therein set forth and carefully expounded. There is but one point on which the judgment is disputed, and that is all that we shall consider. The prosecutors were both members of the tire department of the city of Newark, and were designated "call members." Both were dismissed by a notice dated May 23, 1889, in consequence of the abolition of the call system, and the introduction of the full-paid fire department, by order of the fire commissioners. This was the result of a resolution passed May 21, 1889, to reorganize the fire department of the city of Newark, under the act of May 2, 1885, (Laws, p. 326, Supp. Revision, 517,) entitled "An act to remove the fire and police departments in the cities of this state from political control." By this statute there was created and established, in each of the cities of this state which shall accept the provisions of this act, a board of fire commissioners, and a board of police commissioners, to whom, respectively, shall be intrusted the government, control, and management of the fire and police departments therein, and the direction and control of all public fire and police matters, respectively, subject to the inspection and supervision of the common council of such city, as thereinafter provided. Section 1. This is the general authority under which these commissioners have acted, together with more specific powers granted in succeeding sections of the act for the employment and appointment of firemen and other persons necessary for the work of the department. Their power to remove these prosecutors is denied, because of the protection given to them by the act of March 24, 1885, (Laws, p. 130.) By section 1 it is exacted that no person shall be removed from office or employment in the fire department of any such city, (where there is a fire department,) or from the fire department force of any such city, for political reasons, or for any other cause than incapacity, misconduct, non-residence, or disobedience of just rules and regulations, established, or which may be established, for the fire department or force of such city, etc. A similar statute relating to police departments in cities was held to be constitutional, in its provision relating to the removal of officers, in the case of New Brunswick v. Fitzgerald, 48 N. J. Law, 456, 8 Atl. Rep. 729, and 47 N. J. Law, 479, 1 Atl. Rep. 496. Johnston, one of these prosecutors, also claims exemption under the act in regard to honorably discharged Union soldiers, (Laws 1888, p. 135,) to which class he belongs. Such person, by the statute, shall hold his position in any city or county of this state during good behavior, and shall not be removed for political reasons. The purpose of these several statutes, when read together, is apparent. It is to protect deserving and useful men in the enjoyment of public positions or offices of profit to which they have been chosen, during good behavior; and especially to guard them against removal for political reasons. They have been adjudged to be valid, and liberally enforced by our courts for the benefit of the persons therein named, when, in proper cases, they have invoked their protection. But there will be occasions of incidental removal from offices and positions where these statutes are inoperative There must be changes made from time to time in the administration of public affairs, which may result in discontinuing old methods, and creating new offices or positions requiring greater capacity, skill, and experience, and more constant service. These may interfere with some already in existence, but if they are substantial, and needful to promote the efficiency of a public department, not mere pretexts for removals from office, in violation of the provisions of these statutes, and fraudulent...