Johnson v. City of Wildwood

• Citation: 184 A. 616
• Decision Date: 30 April 1936
• Docket Number: No. 41.,41.
• Parties: JOHNSON v. CITY OF WILDWOOD et al.
• Court: United States State Supreme Court (New Jersey)

184 A. 616

JOHNSON

v. CITY OF WILDWOOD et al.

No. 41.

Court of Errors and Appeals of New Jersey.

April 30, 1936.

Appeal from Supreme Court.

Certiorari proceeding by Howard Johnson against the City of Wildwood and others, to review prosecutor's dismissal from the police force of the City of Wildwood. From a judgment dismissing the writ (13 N.J.Misc. 593, 180 A. 232), the prosecutor appeals.

Reversed.

Bleakly, Stockwell & Burling, of Cainden, for appellant.

William George, of Jersey City, for respondents.

PERSKIE, Justice.

This appeal brings up for review a judgment of the Supreme Court dismissing prosecutor's writ of certiorari by which he challenged and caused to be reviewed his dismissal as a police officer of the police force of the city of Wildwood. (1935) 13 N.J.Misc. 593, 180 A. 232.

We are met, in limine, with these prefatory remarks by the court:

"We think it safe to say that if the filed reasons had stated certain grounds appearing plainly on the record * * * this court would have little difficulty in setting aside the conviction and dismissal. The trial was disorderly throughout, as the transcript of the testimony plainly shows. Fundamentally, the specifications seem insufficient, as they allege without assigning any date, that prosecutor observed the presence of certain slot machines at specified places and willfully failed and neglected to report them; and when questioned why he had so omitted to report, said that they were on another man's beat; also that he did 'willfully make false and untrue statements to "the chief of police,"' etc. The trial was in 1934, and it appeared that the dereliction if any, was in 1932 when the chief of police who signed the complaint was not in office as such. But no objection was made to the charge and specification. What is before us is the transcript of a sort of go-as-you-please trial, with no substantial legal point now argued; based on anything raised below."

Was the court below right in refusing to set aside the conviction and dismissal? We think not. We do not, it is true, consider any question not properly raised and argued below unless it goes to jurisdiction, or involves public policy (Dickinson v. Inhabitants of the City of Plainfield [N.J.Err.&App.] 184 A. 195), or relates to an error which is apparent on the face of the record (Griffith v. West, 10 N.J.Law, 350; Treasurer of Plainfield v. Marcellus, 68 N.J.Law, 201, 52 A. 233; Rutherford v. Meginnis, 72 N.J.Law, 444, 60 A. 1125; Cardillo v. Bound Brook, 127 A. 792, 3 N.J.Misc. 249). Thus where the error appears on the face of the record, it has been held that a general reason alleging the unlawfulness of the conviction, as is alleged in the case at bar, in the ninth reason, otherwise insufficient, because of its vagueness, is sufficient. Treasurer of Plainfield v. Marcellus, supra.

In addition, however, to that which has been written, we are of the further opinion that the prosecutor was not, as claimed for him under the second reason, given a fair trial. For many years our Legislature, in pursuance of a sound public policy, has given to certain public servants and officials tenure of office. Wisely protecting and safeguarding that tenure, no policeman may be removed for political reasons or for any other cause than those specifically enumerated in the applicable act; it is the declared intent of that act that every person against whom a charge or charges be preferred be given a fair trial upon said charge and charges, and every reasonable opportunity to make his defense, if any, he has or chooses to make. Article 16 (Police) §§ 3 and 5 (Home Rule Act, P.L.1917, pp. 319, 359, as amended, Comp.St.Supp.1924, § * 136—1603 and Comp.St.Supp.1930, §* 136—1605), Merry & Eckman (2d Ed. [1930]) pp. 128-135.

Thus we approach the consideration of the question: What is a fair trial? It is a term not uniformly or easily described. But, let there be an unfair trial, then every normal person, possessed of average or ordinary ability to distinguish between right and wrong, immediately senses the fact. The term "fair trial" has been variously defined. A fair trial is a legal trial; one conducted according to rules of common law except in so far as it has been changed by statute; one where the accused's legal rights are safeguarded and respected. See cases collated in 3 Words and Phrases, Third Series, 511, 512. In our own state, in Eisberg v. Mayor and Council of Borough of Cliffside Park, (1919) 92 N.J.Law, 321, 322, 105 A. 716, 717, Mr. Justice Minturn for the court said:

"A fair trial, in the generic language of Mr. Webster in the Dartmouth College Case (4 Wheat. [518] 579, [581, 4 L.Ed. 629]), is a proceeding which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial. Specifically it is held to be that a hearing shall be accorded to the alleged delinquent by an impartial and disinterested tribunal. 2 Abb.Mun.Corp. 1663; State ex rel. Pinkerman v. Rusling, 64 Conn. 517, 30 A. 758; Streeter v. Worcester, 177 Mass. 29, 58 N.E. 277." Compare Ramsey v. Railway, 1 N.J.Misc. 332, 333; Kelly v. Bishop (N.J.Sup.) 119 A. 6.

We are not unmindful of the fact that a proceeding for the removal of a police officer is not governed by the strict rules applicable to proceedings upon an indictment, or in law or equity causes, but it does mean a trial which insures the administration of "substantial justice," otherwise the legislative interdiction "that (prosecutor) be given a fair trial is rendered nugatory." See Ayers v. Newark, 49 N.J.Law 170, 6 A. 659; Capone v. Union County Park Commission, 156 A. 782, 9 N.J.Misc.R. 1105; McCran v. Gaul, 95 N.J.Law, 393, 402, 112 A. 341, affirmed 96 N.J.Law, 165, 112 A. 603.

Let us look to the proofs as to whether ...