Harcher v. Hurley

• Decision Date: 02 November 1935
• Docket Number: No. 262.,262.
• Citation: 181 A. 309
• Parties: HARCHER v. HURLEY. POPARTEYS v. SAME.
• Court: New Jersey Supreme Court

181 A. 309

HARCHER

v. HURLEY.

POPARTEYS

v. SAME.

No. 262.

Supreme Court of New Jersey.

Nov. 2, 1935.

"Reinstate" is the act of reinstating; reinstatement; renewal; restoration to a former position, office or rank; to place again in possession or in a former state; to restore to a state from which one has been removed; to instate again; as to reinstate a king in the possession of the kingdom.

Quo warranto proceedings by the State of New Jersey, on the relation of Joseph S. Harcher and Joseph Z. Poparteys, against John J. Hurley.

Judgment in accordance with opinion.

Argued January term, 1935, before TRENCHARD, HEHER, and PERSKIE, JJ.

William Rubin, of Bayonne, for relators.

Patrick J. O'Connell, of Bayonne, for defendant.

PERSKIE, Justice.

The stipulated facts disclose that the relators, and nineteen other patrolmen, were dismissed from the police department of the city of Bayonne, on January 5, 1934, for economic reasons. That, we have held, was proper. Donovan v. Board, etc., Bayonne, 175 A. 143, 12 N. J. Misc. 792. Relators, under the circumstances and for the reasons more fully hereinafter set forth, challenge the office of patrolman now held by defendant.

It appears that in pursuance of the provisions of chapter 148, P. L. 1933, p 299 (N. J. St. Annual 1933, § *136—3900 L(13), and chapter 114, P. L. 1934, p. 310 (N. J. St. Annual 1934, § *136—3900L (14) et seq.), a "special list" of the patrolmen dismissed, as aforesaid, was prepared. Relators, Joseph Z. Poparteys and Joseph S. Harcher, are first and seventh, respectively, on that list. These acts also provide, inter alia, that in the event "any new appointments" are made policemen or firemen removed or demoted for reason of economy "shall first be appointed thereto before any other persons are appointed."

Defendant was also a patrolman of the police force of the city; he was first appointed on July 27, 1926. But on April 18, 1933, he was dismissed by Jerome J. Brady, then director of public safety, because of intoxication while on duty. On December 10, 1934, almost twenty months after his dismissal and without any claim that it was illegal, defendant made application to the then director of public safety, Dennis O'Leary, for reinstatement We are told that in pursuance of that application a hearing was had; although no record thereof was made or otherwise submitted. It does, however, appear that the director and the defendant had some sort of a conversation; but the details thereof were not recorded, nor are they otherwise supplied in the record. There was a Bible on the director's desk indicating that it was used to administer the oath of office to the defendant. That is not challenged. It was undoubtedly so used. But the statement that there was a hearing on the application for reinstatement is not very convincing or persuasive. At all events, the record is barren of any proof which formed the basis for the action of Director O'Leary, who, on December 14, 1934, certified to the board of commissioners that he had "appointed, reappointed and/or reinstated John J. Hurley (defendant herein) to the office or position of patrolman. * * *" The defendant has since December 17, 1934, continued on the police force.

Each relator claims that the stated action of the director was, and the resultant holding of that office by the defendant is, in contravention of the acts of 1933 and 1934, supra. Harcher does so in pursuance of leave granted by Chief Justice Brogan "as a private citizen and tax payer only." Poparteys does so on the ground that since defendant was discharged for reasons other than economy and his (defendant's) name was not on the "special list," and he, Poparteys, being first named on that list, was entitled to the office and should have been first appointed thereto.

Defendant, however, resists these claims on the grounds that the pertinent provisions of the acts in question apply only to "new appointments"; that he holds office not by virtue of a new appointment, but rather by reason of having been merely reinstated to his former office.

First. Does the defendant hold office by virtue of having been reinstated thereto or does he hold office as a new appointee? To answer this alternative question, we look first to the definition of the word reinstatement. In 53 C. J. 1183, it is defined as "the act of reinstating; reinstatement; renewal; restoration to a former position, office or rank." And Webster's International Dictionary defines "reinstate," "to place again in possession or in a former state; to restore to a state from which one has been removed; to instate again; as to reinstate a king in the possession of the kingdom." Let it be marked that the police surgeon's certificate and report of the physical examination of the defendant is identical in form with those made in 1926, when the defendant was first appointed to the force; there was, of course, no allowance of back pay in the purported reinstatement and there could not have been any such allowance since the time to review the dismissal by certiorari had expired and there was no claim that the reinstatement was based on newly discovered evidence. Obviously, the director himself did not know how to correctly describe his act, so he joined the ranks of the "And/or-ians" and characterized it as either an "appointment, reappointment and/or reinstatement." We digress long enough to make the observation that we concur with many other judges, appellate and otherwise, who severely condemn this hybrid expression. It is an expression which attained a temporary vogue but now appears, fortunately, as we think, to be on the wane. See editorials, cases, and comment in the American Bar Association Journal, under dates of July, August, and September, 1932.

It is interesting to note that no statutory authority is brought to our attention which would appear to give a director of public safety the right to reinstate a patrolman who, as here, was...