Cammarata v. Essex County Park Commission

• Decision Date: 03 September 1957
• Docket Number: No. A--344,A--344
• Citation: 46 N.J.Super. 262,134 A.2d 604
• Parties: Agustine V. CAMMARATA and Richard Costa, Plaintiffs-Respondents, v. ESSEX COUNTY PARK COMMISSION and Robert B. Kinsey, Defendants-Appellants. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 262

46 N.J.Super. 262

134 A.2d 604

Agustine V. CAMMARATA and Richard Costa, Plaintiffs-Respondents, v. ESSEX COUNTY PARK COMMISSION and Robert B. Kinsey,

Defendants-Appellants.

No. A--344.

Superior Court of New Jersey.

Appellate Division.

Argued July 29, 1957.

Decided Sept. 3, 1957.

John J. McDonough, Newark, for appellants (Darby & McDonough, Newark, attorneys).

Abraham L. Friedman, Newark, for respondent (Doane Regan, Newark, attorney).

Before Judges CONFORD, HANEMAN and EWART.

The opinion of the court was delivered by

EWART, J.S.C. (temporarily assigned).

By this action in lieu of prerogative writ plaintiffs attack the action of Essex County Park Commission in having removed them, without charges or hearing, as probationary patrolmen of the Essex County Park Commission. From a judgment in favor of plaintiffs, defendants appeal.

Essex County Park Commission is a body politic and corporate, with power to sue and be sued, use a common seal, and make and adopt by-laws. It was created by L.1895, c. 91 (R.S. 40:37--99, N.J.S.A.). Its officers and employees are not included in the classified civil service. (R.S. 11:22--2, N.J.S.A.). By L.1895, c. 91, as amended L. 1906, c. 102 (R.S. 40:37--154, N.J.S.A.), the Legislature delegated to the commission the following powers:

'The commission may appoint and establish a constabulary * * * and may organize the constabulary into a police system to be known as 'the park police of the county of * * *'.

'The commission may establish proper rules and regulations for the appointment, control and management of the members of the constabulary, and for the securing of proper discipline and efficiency among the members thereof.'

By L.1928, c. 233, as amended L.1946, c. 27 (N.J.S.A. 40:37--156), the Legislature provided that:

'No member or officer of the police force or police department shall be removed except after trial and conviction by the park commission, or a member or members thereof, of the violation of proper rules and regulations for the appointment, control and management of members of such force or department and for the securing of proper discipline and efficiency among the members thereof.'

There is no statutory authority in express words for the park commission to appoint probationary members of its constabulary or police department.

Pursuant to the delegation of authority contained in R.S. 40:37--154, N.J.S.A., the commission did establish general rules and regulations governing the park police (Exhibit D-2), and in addition thereto on June 17, 1954 the commission adopted a resolution:

'* * * That any person qualifying for a position as a patrolman on the Park Police of the County of Essex be employed for a probationary period of one year, during which time, upon recommendation of the Chief to the Board, the man's services may be discontinued, and at the end of the probationary period appointments to the force would be made only upon the report of the Chief that the individual had qualified.'

Each of the plaintiffs filed written applications with the commission for employment as patrolmen in the police department, Cammarata under date of February 4, 1955, and Costa under date of February 2, 1955.

Under date of March 4, 1955 each of plaintiffs were notified by letter from defendant Kinsey, secretary and director of the park police, that they would be appointed probationary patrolmen effective March 25, 1955, the letter of notification reading in part:

'Your appointment to this Department is subject to your clearly understanding and accepting the provisions shown on the sheet attached hereto. You will note that there are two copies of this sheet, and you are directed to sign and date one copy of said sheet and return it to me at once in the self-addressed enclosed envelope.'

The sheet referred to in said letter is set forth in the Appendix as Exhibit B annexed to the answer, was signed by each of plaintiffs and contains the information that:

'Applicants successfully meeting the requirements of the Department will be appointed for a probationary period of one year and will be sworn in as probationary members of the Department. During said period of probation, if at any time in the opinion of the superior officers of the Department, the Director, the Police Committee, or the Essex County Park Commission, an applicant does not continue to justify his employment, he may be immediately terminated. At the termination of his probationary period, the applicant's record in the Department for the preceding year will be reviewed and if found satisfactory, he will become a regularly appointed patrolman in the Department.'

The said sheet referred to is entitled:

'Essex County Park Commission Police Department

Information for Applicants for Appointment as Probationary Patrolmen.'

At the end of the sheet, each of the plaintiffs signed the following statement:

'I hereby certify that I have read, understand, acknowledge and accept the information and regulations stated above.'

Plaintiff Cammarata signed the same on March 5, 1955, and plaintiff Costa on March 8, 1955.

The minutes of a meeting of the Essex County Park Commission held March 15, 1956 (Exhibit C annexed to the answer), show that the chairman of the police committee reported that the six men appointed probationary patrolmen on March 25, 1955 had been carefully evaluated from time to time during their probationary period, the most recent evaluation having been on March 3, 1956; that following a careful review of the findings of the evaluation committee by the chief it was found that four of the probationary patrolmen met the requirements of the Department and that two others did not. And the minutes contain the statement:

'It was the further recommendation of the Chairman of the Police Committee that the services of Agustine V. Cammarata and Richard F. Costa, those Probationary Patrolmen failing to qualify for appointment, be terminated, with their active duty to be discontinued at the end of their tour of duty on March 15, 1956, * * *. Upon motion duly made, seconded and unanimously passed, the recommendation of the Police Committee was approved and the Director of Police was instructed to issue the necessary police order.'

By letter dated March 15, 1956 defendant Kinsey, secretary and director of police, notified plaintiffs of the termination of their services with the park police department and that their active duty with the police department would end on March 15, 1956.

Plaintiffs contended below and here that the attempted appointment of plaintiffs as probationary patrolmen was without statutory authority; that they were appointed patrolmen pursuant to section 154 of the statute cited; that their appointments under that section made them regular permanent members of the park police; and that their removal without charges being made and without a hearing was invalid and of no legal effect.

Defendants-appellants, on the other hand, contend that power to appoint for a probationary term to the park police, although not set forth in express words in the statute, is necessarily incidental or essential to the exercise of the power expressly conferred by the statute to establish rules and regulations concerning the appointment of policemen, and that the resolution adopted by the park commission on June 17, 1954 providing for probationary service for a period of one year is...