City of Newark v. Civil Serv. Comm'n of State of N.J.

• Decision Date: 16 February 1935
• Docket Number: No. 256.,256.
• Citation: 177 A. 121
• Parties: CITY OF NEWARK et al. v. CIVIL SERVICE COMMISSION OF STATE OF NEW JERSEY et al.
• Court: New Jersey Supreme Court

177 A. 121

CITY OF NEWARK et al.

v. CIVIL SERVICE COMMISSION OF STATE OF NEW JERSEY et al.

No. 256.

Supreme Court of New Jersey.

Feb. 16, 1935.

Proceeding by the City of Newark and Michael P. Duffy, Director of the Department of Public Safety, against the Civil Service Commission of the State of New Jersey and James Guiliano to review a ruling of the Commission setting aside the dismissal of respondent Guiliano from the position of patrolman and ordering the Director of Public Safety to reinstate such respondent to his position and pay as of the day of his suspension.

Writ dismissed.

Argued October term, 1934, before TRENCHARD, HEHER, and PERSKIE, JJ.

Frank A. Boettner, of Newark (Thomas M. Kane, of Newark, of counsel), for prosecutors.

Luke A. Kiernan, Jr., of Newark, for respondents.

PERSKIE, Justice.

This writ of certiorari brings up for review the ruling, apparently treated by all parties as a judgment—at least there is no objection raised on this score—of the Civil Service Commission of the State in which it set aside the dismissal of the respondent Guiliano from the position of patrolman in the Uniformed Police Department of the City of Newark, by the director of the Department of Public Safety of that city; and in which ruling it was ordered that said director reinstate the respondent to his position and pay of patrolman in said police department as of January 16, 1934, the day pf his suspension.

The record discloses that respondent Guiliano had been prior to January, 1934, a member of the Police Department of the City of Newark for a period of about 16 years; had been married for 24 years and was the father of three children, 23, 21, and 17 years of age; and for about 6 1/2 years prior to his suspension he, also, supported his widowed sister-in-law and her three children.

On July 17, 1934, three separate charges were preferred against him. Succinctly stated they were, substantially, as follows: (1) That he entered a certain building, more fully hereinafter described, while in uniform and not in the actual performance of police duty, i. e. without just cause, and failed to immediately submit a report to his superior officers of his having done so (disciplinary rule 13 of the department). (2) That without just cause he entered this same building and questioned one Elizabeth D. Carney as to whether she had a venereal disease and asked her other improper questions (disciplinary rule 16 of the department). (3) That he was in possession of information which led him to believe that Elizabeth D. Carney was suffering from a venereal disease and failed to report that information to his superior officers (disciplinary rule 32 of the department).

Guiliano pleaded guilty to the first charge before the director of public safety, and on final hearing, held on February 8, 1934, was adjudged guilty on all charges and ordered dismissed from the department. Thereupon Guiliano appealed to the Civil Service Commission.

The proofs before the commission disclosed that the building, which the respondent was charged as having entered without just cause, and not while in the performance of police duty, was formerly known as the "Star Ball Room," and now known as "Tangoland," and is located at the corner of Market and Mulberry streets, Newark, N. J. This ball room is a public one, and is commonly described as a 10-cent dance hall. The women who worked there were called hostesses; they were obliged to dance with any one of the patrons who paid the required charge of 10 cents a dance.

The place had apparently caused the police department some trouble, because of the congregation of its patrons; there had been complaints of "unnecessary noises" therein, and "loitering and hanging around the place by bums"; "there had been several fights in the ball room and I (Captain O'Neill) called it to the attention of the officers on the post for that reason." As a result thereof, Captain O'Neill, in charge of the precinct with which respondent was connected on the night in question, testified that he ordered the patrolmen on post, including respondent, "to keep their eyes open and be on lookout for disturbances"; and that as a result of his instructions he was of the opinion, although Deputy Chief Sebold held a contrary view, that a patrolman patrolling that section, as did the respondent herein, would have the right to go into that dance hall and see that everything is going on as it should, "look the place over casually"; and unless he did see or find trouble no written report of his having entered the place was necessary. But, "if, however, he did see or find trouble it was the duty of the patrolman to report to his sergeant who met him later that night."

The proofs further disclose that Elizabeth D. Carney, who is married but separated from her husband, was one of the hostesses in this dance hall. Respondent had seen her on several occasions in a restaurant, around 4:30 o'clock in the morning, with one Capoli, alias Russell. Respondent, some time in August, 1934, arrested this same Russell for loitering; at that time Russell was in the company of a girl who was a runaway from the Clinton Reformatory.

On January 3, 1934, pursuant to directions of Captain O'Neill, Guiliano entered the dance hall in question. He asked to talk with Mrs. Carney. He took her into a side room and that is what he said to her: "'I understand you are a stranger in town,' I said, 'Do you know the company you are going with?' She said, 'I know him.' I said, 'He is bad company. I got information: he has a venereal disease, and I would advise you to stay away from him. The reason I am telling you this is that I have two daughters of my own. I don't know whether you had anything to do with this man, but if you did, you better go see a doctor, and if you haven't got any money, go to the Board of Health.' Then I walked out. She said, 'It is none of your business. I can go with whomever I please.' I said, 'I am only trying to tell you. I am giving you fatherly advice, because I have two daughters of my own your age.'"

Mrs. Carney told Russell of this occurrence and he, apparently, told her to report it to the director. This she did. The respondent was thereafter asked for a report of the occurrence and he furnished it. It is strongly urged that this very report indicates that the police officer had information of the character that required him to report same to his superiors, namely, that Mrs. Carney was living with Russell and that the latter was supposed to be diseased. Guiliano did, however, testify, although it was denied, that he did report it to a plain clothes man of the department.

It does appear that this police officer during his service of 16 years with the department had about 25 charges preferred against him and that he was...