Smith v. Hazlet Tp.

• Decision Date: 07 September 1973
• Citation: 63 N.J. 523,309 A.2d 210
• Parties: William J. SMITH, Plaintiff-Appellant, v. TOWNSHIP OF HAZLET, a municipal corporation, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 523

63 N.J. 523

309 A.2d 210

William J. SMITH, Plaintiff-Appellant, v. TOWNSHIP OF HAZLET, a municipal corporation, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Jan. 9, 1973.

Decided Sept. 7, 1973.

Philip J. Blanda, Jr., Hazlet, for plaintiff-appellant (Blanda & Blanda, attorneys; Philip J. Blanda, Jr., Hazlet, of counsel).

Howard A. Roberts, Middletown, for defendant-respondent (Roberts, Madden & Holobinko, Middletown, attorneys; John E. Holobinko, Middletown, on the brief).

The opinion of the Court was delivered by

MOUNTAIN, J.

Plaintiff is the Chief of Police of Hazlet Township. By this action in lieu of prerogative writ he challenges the validity of certain resolutions adopted by the governing body of that municipality. The resolutions provide that police sergeants are to be assigned such duty as the township committee may direct and that in the absence of such direction they are to be assigned to such duty as the Chief of Police may designate. The resolutions further specifically state that Sergeant Johnson be placed in charge of the Juvenile Squad and that Sergeant McCabe be continued as Safety Officer and on desk duty as heretofore. All organizational units are to report to the Police Captain who in turn is to report to the Chief of Police. The resolutions were adopted to implement a plan for restructuring the police department that the township committee had been considering for some time. Plaintiff maintains that the action is invalid as trespassing upon prerogatives inherent in his office of Chief of Police.

The trial court granted defendant's motion for summary judgment and the Appellate Division affirmed in an unreported opinion. We granted certification. 62 N.J. 81, 299 A.2d 78 (1972).

The resolution of the issue before us requires some definition of the power of a chief of police of a township as compared with those retained by and reposing in the governing body. It is initially important to consider the relevant statutes. The police department of the Township of Hazlet was created in 1965 pursuant to N.J.S.A. 40:149--1, which read, in pertinent part,

The township committee may by ordinance establish a police department and provide for the regulation, control and management of a police force, and may, by resolution, appoint such members and officers of such police force as they may deem necessary.

This statute applied solely to townships. In effect at the same time as this statute, there was also a more comprehensive act, applicable to all municipalities including townships, which read as follows:

The governing body of every municipality may make, amend, repeal and enforce ordinances to establish, maintain, regulate and control a police department and force, and subject to the provisions of article 3 of this chapter (§ 40:47--21 et seq.), a paid fire department and force therein; to prescribe and establish rules and regulations for the government and discipline thereof; the appointment, terms and removal of the officers and members thereof, and to prescribe their duties and fix their compensation. (N.J.S.A. 40:47--1)

Both these enactments were repealed in 1971 and replaced by the following:

The governing body of any municipality, by ordinance, may create and establish a police department and force and provide for the maintenance, regulation and control thereof, and except as otherwise provided by law, appoint such members, officers and personnel as shall be deemed necessary, determine their terms of office, fix their compensation and prescribe their powers, functions and duties and adopt and promulgate rules and regulations for the government of the department and force and for the discipline of its members. (N.J.S.A. 40A:14--118)

The act last quoted, which is the law today, is not significantly different for our purposes from the earlier legislation it replaced. Of particular importance to a consideration of the narrow issue here presented is the fact that the office of chief of police is nowhere mentioned in any of these statutes. The power to establish, maintain, regulate and control the police department, to appoint personnel, to prescribe their respective powers, functions and duties and to fix rules and regulations for the government of the police department and the police force is very explicitly and broadly given to the municipal governing body. The chief of police derives no power or authority directly from the statute; it cannot be said that his is statutory office. Rather his powers are derivative in the sense that they are to be found in the ordinances, resolutions, rules and regulations adopted and promulgated by the governing body in the exercise of its broad statutory responsibility. Presumably the day to day administration of the department rests with the chief of police and the delegation to him of administrative powers may well be in the public interest as enhancing departmental efficiency. But we deal here with power and not with administrative policy. The legislative scheme is clear.

Plaintiff draws our attention to L.1899, c. 135, § 38 (N.J.S.A. 40:107--1) which reads:

The chief of police and the chief of the fire department shall each hold office for the term of two years, and they shall respectively be the executive head of the police and fire department, and shall be responsible for its efficiency.

Whatever authority or power may be thought to derive from this source, (See City Council of Garfield v. Perrapato, 117 N.J.Super. 184, 192--193, 284 A.2d 184 (App.Div.1971)), is of no avail to this plaintiff. The act by its terms applies only to cities having a population of more than 12,000. It has no applicability to a township. A statute respecting police departments in Cities cannot be extended to affect police departments in townships. Bohan v. Weehawken, 65 N.J.L. 490, 492, 47 A. 446 (Sup.Ct.1900). In fact reference to this legislation suggests an argument opposed to plaintiff's position. The same Legislature that enacted L.1899, c. 135, § 38 also, in the same year, enacted a comprehensive statute dealing with townships, L.1899, c. 169, in which appeared the prototype of N.J.S.A. 40:149--1 quoted above. This latter enactment did not refer in any way to the office of chief of police, much less describe the holder of the office as executive head of the police department. Where two comprehensive statutes are enacted by the same legislative body in the same year, one dealing with a certain class of cities and the other dealing with townships, and where the former designates the office of chief of police and accords the holder of the office some measure of statutory authority, while on the same subject the latter is silent, the inference is permissible that the distinction is a purposeful one.

Our cases have insisted upon strict compliance with the statutory grant of power where the issue has concerned the regulation or control of a police department or police personnel. In Harvey v. Poole, 17 N.J.Misc. 165, 7 A.2d 630 (Ct. of Com.Pl.1939) the defendant, a member of the police force in Ocean Township, was found to have violated certain regulations that had been promulgated by the chief of police with the approval of a member of the township committee who had been designated chairman of the police department. The rules were held to be invalid since the relevant statute, N.J.S.A. 40:149--1, required that all rules and regulations be adopted by the township committee as a whole. Accordingly the charges against the defendant were dismissed. In Keegan v. Bayonne, 81 N.J.L. 120, 78 A. 1053 (Sup.Ct.1911), it appeared that the...