Speck v. Borough of Fairview

• Decision Date: 16 April 1929
• Citation: 145 A. 618
• Parties: SPECK v. BOROUGH OF FAIRVIEW et al.
• Court: New Jersey Supreme Court

145 A. 618

SPECK

v. BOROUGH OF FAIRVIEW et al.

Supreme Court of New Jersey.

April 16, 1929.

Certiorari by William Speck to review the action of the council of Fairview in appointing George Moseley to the police force. Writ dismissed.

Argued before Justice PARKER, Sitting alone pursuant to the statute.

Charles J. McCarthy, of Hackensack, for prosecutor.

Joseph W. Marini, of Cliffside, for the borough.

PARKER, J. This is an attempt to review by certiorari the action of the borough council in appointing the respondent Moseley to the police force as patrolman at a stated salary. The Status of the prosecutor does not appear in any of the papers before me, but I take it for granted that he is a citizen and taxpayer; it is not challenged in any way.

At the argument I intimated to counsel the view that certiorari would not lie in a case of this kind, and examination of the authorities confirms that view.

If a member of the police force is a public officer, his status as Such cannot be attacked by certiorari, either by one claiming the same office, Turtur v. Brokaw, 134 A. 747, 4 N. J. Misc. R. 870; or by an outsider, Diebert v. South Amboy (N. J. Sup.) 137 A. 647; Zenkert v. Garfield, 137 A. 548, 5 N. J. Misc. R. 498. Certiorari may lie when the existence of the office itself is in dispute. Lewis v. Newark, 74 N. J. Law, 308, 313, 65 A. 1039; Loughran v. Jersey City, 86 N. J. Law, 442, 92 A. 55; but that question does not arise in this case.

That a policeman is a public officer seems well settled. It was So assumed as of course in Hoboken v. Gear, 27 N. J. Law, 265, 280, in which a policeman sued for salary on the theory of contract, and it was held that as a public officer he had no contract relation with the city. This was followed by Van Sant v. Atlantic City, 68 N. J. Law, 449, 53 A. 701. Wilson v. Ramsey, 86 N. J. Law, 263, 90 A. 265, in the Court of Errors and Appeals, was a quo warranto, and properly so, as it challenged the appointment of Ramsey as chief of police. In Moore v. Bradley Beach, 87 N. J. Law, 391, 94 A. 316, I had occasion to deal with the question whether a borough marshal, qua public officer, might by certiorari challenge the validity of a resolution purporting to remove him from office, as something tending to disturb him in his possession thereof. That case, which is the converse of this, illustrates the principal exception to the rule that title to an existing public office is not triable by certiorari. Moore v. Bradley...