McGonnell v. Bd. of Com'rs of City of Orange

• Decision Date: 05 June 1923
• Citation: 121 A. 135
• Parties: McGONNELL v. BOARD OF COM'RS OF CITY OF ORANGE et al.
• Court: New Jersey Supreme Court

121 A. 135

McGONNELL

v. BOARD OF COM'RS OF CITY OF ORANGE et al.

Supreme Court of New Jersey.

June 5, 1923.

(Syllabus by the Court.)

Certiorari by Joseph P. McGonnell against the Board of Commissioners of the City of Orange and others to test the validity of a resolution adopted by defendant Board of Commissioners, which is alleged to exclude plaintiff from the performance of his duties as Chief of Police. Resolution set aside.

Argued February term, 1923, before PARKER and BERGEN, JJ.

Josiah Stryker, of Newark, for prosecutor.

William A. Calhoun, of Orange, for defendants.

PARKER, J. The prosecutor is chief of police of the city of Orange, and has sued out this writ to test the validity of a resolution adopted by the Board of Commissioners of that city, which, as he claims, has the practical effect of excluding him from the performance of the duties of his office, although it does not specifically purport to remove him therefrom. Certiorari is the appropriate remedy in such a case. Murphy v. Board of Chosen Freeholders of Hudson County, 92 N. J. Law, 244, 104 Atl. 304; Moore v. Borough of Bradley Beach, 87 N. J. Law, 391, 94 Atl 316.

The office appears to have been created by statute so far as its essential authority is concerned. The charter of the town of Orange (P. L. 1869, p. 182 et seq.) called for a "marshal" and a suitable number of policemen, section 8, p. 185; authorized the council by ordinance to establish, regulate, and control a day and night police, and to regulate the manner of their appointment and removal, their duties, and their compensation. Id., p. 193. In the same year, the council passed an ordinance relating to the police department, and provided therein that the marshal should be designated and known as "chief of police." This, of course, was merely another name for the statutory "marshal." See Bradshaw v. Camden, 39 N. J. Law, 416. By section 2 it was further provided that—

The marshal should be "the executive head of the department. * * * It shall be his duty to cause the public peace to be preserved, and to see that all the laws and ordinances are enforced; and whenever any violation thereof shall come to his knowledge, he shall cause the requisite complaint to be made, and see that the evidence is procured for the successful prosecution of the offender or offenders; he shall, also, have charge of the town lockup."

In 1872, Orange was elevated into a city, the existing charter being retained in all essentials by the act. P. L. p. 1097. The so-called "Walsh Act" of 1911 (P. L. p. 462) was adopted in 1914.

On January 23. 1917, the board of commissioners of the city of Orange adopted an ordinance entitled "An ordinance concerning the police department of the city of Orange." Sections 1 and 2 of this ordinance read as follows:

"Section 1. The officers of the police department are hereby constituted and shall be known as follows:

"(a) One Chief.

"(b) Such number of lieutenants as may be deemed necessary.

"(c) Such number of sergeants as may be deemed necessary.

"(d) Such number of patrolmen as may be deemed necessary.

"(e) Such number of chancemen as may be deemed necessary.

"Sec. 2. The duties of the officers and patrolmen of the police department shall be as prescribed by the board of commissioners or if such duties are not prescribed by the board, then as may be prescribed from time to time by the director of public safety."

The ordinance last above mentioned was in force and effect at the time of the appointment of the relator as chief of police of the city of Orange in January, 1921.

The "Home Rule" act of 1917, passed after the ordinance just mentioned, does not seem to effect any particular change in the status. By section 1 of article 16 (P. L. p. 359), the governing body is empowered to "make, enforce, amend or repeal ordinances to establish, maintain, regulate and control a police department, and to prescribe and establish just rules and regulations respecting such department for the better government and discipline thereof." But that act expressly reserves the existing status as respects "officers, boards and bodies," and provides that—

"Nothing herein contained shall be held to change in any manner the officiary of any municipality, nor to alter the structure of the government now existing therein." Section 25, p. 462.

The ordinance of January, 1917, as will be seen above, made no provision for any "captain" of police. In November, 1922, however, the director of public safety undertook to appoint Thomas M. Ryan as captain of police, and in December, no doubt to establish a basis for such appointment, the board passed an ordinance, not here questioned, in which, among other things a captain of police was provided for. Ryan seems to claim under this appointment and ordinance, and his status as captain is not here impugned. The attack is specifically on a broad and radical "suspension" of the "rules" of the police department, the effect of which, as claimed, is to leave to prosecutor the mere shadow of the power and duty of his office, transferring the substance to the "police captain." This revision was by resolution of the board, and the question argued is whether this resolution is lawful. An examination of the "suspended" rules, and of those left untouched, will tend to throw light on this question.

The rules now "suspended" provide that the chief of police shall be the chief executive officer, charged with seeing that the laws and ordinances are enforced (the language, we may here note, of the ordinance of 1869); he receives orders from the director of public safety and promulgates orders to the force; makes written reports and recommendations to the director; is responsible for the preservation of the public peace (again the language, substantially, of the ordinance of 1869) and empowered to establish police posts and detail the officers to cover them; is responsible for the good order of the police station and discipline of the force; receives all prisoners and transmits them to the police court; keeps the "criminal docket" and "receipt books" of property found on prisoners, as well as a record of the service performed by members of the force from day to day, reporting all absentees, names of parties arrested, and particulars about them; also reporting officers injured on duty; inspects dress and arms of the policemen; reports riots and serious fires; remains...