State ex rel. Wm. Eckelmann, Inc. v. Jones

• Decision Date: 24 April 1950
• Docket Number: No. A--94,A--94
• Citation: 72 A.2d 322,4 N.J. 207
• Parties: STATE ex rel. WM. ECKELMANN, Inc. v. JONES.
• Court: New Jersey Supreme Court

Page 207

4 N.J. 207

72 A.2d 322

STATE ex rel. WM. ECKELMANN, Inc. v.JONES.

No. A--94.

Supreme Court of New Jersey.

Argued Feb. 17, 1950.

Decided March 27, 1950.

Reargument Denied April 24, 1950.

See 72 A.2d 872.

William V. Breslin, Englewood, argued the cause for the appellant.

James A. Major, Hackensack, argued the cause for the respondent(Joseph H. Gaudielle, Hackensack, attorney).

The opinion of the court was delivered by

VANDERBILT, C.J.

This is an appeal from a judgment of the Superior Court, Law Division, dismissing an information in the nature of a writ of Quo warranto.The appeal was taken to the Appellate Division and was certified by this Court on its own motion.

The plaintiff challenges the right of the defendant to hold office as a patrolman in the police department of Ridgefield Park, a village governed by the provisions of the Walsh Act(R.S. 40:70--1 et seq., N.J.S.A.) but which had never adopted the Civil Service Act(R.S. 11:19--1 et seq., N.J.S.A.).In 1939 the village passed an ordinance regulating its police department, the pertinent portions of which are:

'2.The Police Department of the Village of Ridgefield Park(hereinafter referred to as the Department), shall consist of the following: * * *.

'(d) Such number of patrolmen as the Director may deem necessary * * *.

'(i) A Reserve Force subject to the provisions of Section 7 hereof, * * *.

'7.Reserve Force

'(a) The Director may establish a Reserve Force by appointing Reserve Policemen or Policewomen in such number as he may determine, not exceeding in number the number of members on the permanent force.Members of the Reserve Force shall not be considered as members of the permanent force and shall not share in or become members of the Police Pension Fund.

'(b) Such appointment as a member of the Reserve Force may be terminated by the Director at any time without cause or hearing. * * *.

'(d) The Director may detail for special service, whenever in his opinion it shall be necessary, as many Reserve Policemen or Policewomen as he shall deem necessary.For the duration of such special service the Reserve Policemen or Policewomen so designated shall be constituted and vested with the authority of special officers of the Village of Ridgefield Park, as provided in Section 40:47--19 of the Revised Statutes of 1937(N.J.S.A.), its amendments and supplements.While performing special service members of the Reserve Force shall have the powers and duties of patrolmen of the Department and shall be subject to the Departmental rules.

'(e) Reserve Policemen or Policewomen while on special service, shall be paid on a per diem basis at the same rate as a patrolman in the Department in the first year of service. * * *.

'30.All appointments to and promotions in the Department shall be made by the Director on written notice to the Chief of Police and the Village Clerk. * * *.'

Some time between June 5th and 8th, 1944, the Mayor of Ridgefield Park and its Director of the Department of Public Safety, in the presence of the Chief of Police, stated orally to the defendant, 'You are engaged as a policeman, as a patrolman, in the Police Department of the Village of Ridgefield Park, effective June 16, 1944.'On that day the defendant was issued a uniform and other policemen's gear, took the oath of office of a patrolman, was assigned a foot patrol beat, and went on duty at 7 p.m.At about 8 p.m. he was instructed by the sergeant to report to the police station, which he did, and he was there referred to the Village Clerk.The defendant was asked to and voluntarily did sign a letter of appointment, though only after he called the Village Clerk's attention to the fact that he was supposed to be a regular and not a special policeman and was assured by the Village Clerk that this was a mere matter of form.This letter, on file in the records of the Village, is as follows:

'To: Harold J. Jones

'You are hereby appointed as a special policeman, as prescribed by Revised Statutes of New Jersey, 40:47--19(N.J.S.A.).

'Your duties shall include such police duties as may be directed and prescribed by the Chief of Police of the Village of Ridgefield Park.

'It is an express condition of your employment that you are not, or by virtue of your employment are you to become, a member of the Police Department of the Village of Ridgefield Park, and you have and will have no rights, claims or interest therein or to any of the benefits, pensions or other rights to which members of the Police Department are entitled under an ordinance of the Village entitled 'An Ordinance to Reorganize, Establish, Maintain, Regulate and Control a Police Department in the Village of Ridgefield Park and to provide Rules and Regulations for the Government and Control Thereof,' adopted March 14, 1939, or the laws of the State of New Jersey.

'You are to receive compensation at the rate of $150.00 per month, payable semimonthly.

'Your services may be terminated by the Director of the Department of Public Safety and Finance at any time, without notice and without cause or hearing.

'Dated June 16th, 1944.

'H. I. Lowe

'Director of the Department

'of Public Safety and Finance

'I hereby accept the foregoing employment, subject to the terms and conditions as set forth above, which I have read and understand.

'Dated June 16th, 1944.Harold J. Jones

'Witness:

'Joseph E. Gorman.'

The official minutes of the Board of Commissioners for June 27, 1944 show the Mayor's appointment of the defendant:

'Special Reports * * *

'Mayor Lowe reported that Harold J. Jones had been appointed as Special Patrolman; that this is a temporary appointment and can be terminated at any time in accordance with the ordinance.'

The official payroll of the police department for the period from June 16th to June 30th, 1944, listed the defendant as a special patrolman and showed that no pension deduction was made from him pay.It is significant to note here that the form of defendant's appointment and his payroll status was the same as that of Special Patrolman Boercherer, who was appointed as such in 1942 and was not dropped from the force until after April, 1947, when men in military service came back to their work.

The defendant continued to perform his duties and was carried on the payroll as a special patrolman for almost three years, until April, 1947.In that month Mayor Lowe, who was still Director of the Department of Public Safety, appointed the defendant as a permanent member of the police force, retroactive to June 16, 1944.Prior to this appointment defendant had taken a competitive examination for patrolmen and rated No. 1.Defendant's appointment is evidenced by the following extract from the minutes of the Board of Commissioners for April 8, 1947:

'Communications * * *'

'1.From Mayor Lowe advising of the appointment of Harold J. Jones as a permanent member of the Ridgefield Park Police Department with rank of patrolman, such appointment to be retroactive to June 16, 1944, the date he originally joined the Department.Communication ordered filed for record.'

The defendant was thereafter carried on the payroll as a patrolman and pension deductions were made from his pay.In the pretrial order it was admitted that the defendant is not a veteran and that at the...