State v. Mayor

• Decision Date: 12 March 1891
• Citation: 21 A. 568,53 N.J.L. 362
• Parties: STATE, (LOPER, Prosecutor) v. MAYOR, ETC., OF CITY OF MILLYILLE.
• Court: New Jersey Supreme Court

21 A. 568

53 N.J.L. 362

STATE, (LOPER, Prosecutor)

v. MAYOR, ETC., OF CITY OF MILLYILLE.

Supreme Court of New Jersey.

March 12, 1891.

On certiorari.

A writ of certiorari, directed to the mayor and common council of the city of Millville, required that body to certify to this court its resolution of June 12, 1889, removing the prosecutor from the office of constable of the First ward of said city. The resolution in question is as follows: "Whereas, section three of the supplement to the charter of Millville approved March fifteenth, eighteen hundred seventy-one, says, among other things, that the marshal of said city, and the constables of the several wards thereof, shall be appointed by the mayor and common council, and be liable to removal from office at any time by the said mayor and common council, for neglect of duty, or for any other cause: Therefore be it resolved, by the mayor and common council sitting together for this purpose, that John Loper, George Madden, and Frank B.——, who have been acting as constables of the several wards of the city of Millville, be, and they are hereby, removed from office, and from duty as constables, and be no longer permitted to exercise the duties thereof, for the causes that a conflict has arisen between the mayor and the common council in regard to the regularity of the appointment of the said constables, whereby their efficiency and usefulness as officers have been impaired, and the harmony which should exist between the mayor and police force of the city is destroyed, and the peace, good order, and government of the city are thereby seriously interfered with, and legal suits and complications are likely to arise, and are threatened, which would be detrimental to the best interests of the city." The reasons assigned for reversing this proceeding are: First, "that by section twenty-five of respondent's charter, approved February 26, 1886, the prosecutor was a man employed in the police department of said city, and could not be discharged except for statutory cause, and after a fair trial; and, second, the action of the mayor and common council of March 26, 1889, as appears by the return, together with the action of May 3, 1889, constituted the prosecutor an officer of the police force of the municipality, and it was illegal to discharge him by the action taken June 12th following."

Argued November term, 1890, before Knapp and Reed, JJ.

Mr. Crandall, for prosecutor.

Mr. Pancoast, for respondent.

KNAPP, J. (after stating" the facts as above.) Under the charter provisions governing the city of Millville, there seems to be no room to doubt that those elected to the office of constable in said city form a part of the police force of the city. The twenty-fifth section of the charter (Pamph. Laws, 1866, p. 125,) confers powers and imposes duties upon the city constables such as pertain only to the local police, and, consequently, in this official character they are within the protection of the statute which prohibits the removal of police officers of a city except for cause and after trial. Act approved March 25, 1885, § 1, as amended; Supp. Revision, p. 514. And the causes for which removal from office is permitted are limited in said act to absence, incapacity, and faulty conduct in the officer. Such removal may be made only upon reasonable notice, a fair hearing, and investigation of the charges upon which the removal is sought to be made. Devault v. Mayor, 48 N. J. Law, 433, 5 Atl. Rep. 451; Ayers v. Newark, 49 N. J. Law, 170, 6 Atl. Rep. 659. The resolution of removal in this case was not based upon any charge against the officer; hence there was no trial, there being nothing to try. It is obvious, therefore, that the resolution was inefficient to disturb the prosecutor in a rightful possession of office.

The return made to the writ, in addition to the resolution of removal ordered to bo certified, embraces the proceedings by virtue of which the relator claims his appointment to the office, as well as the subsequent action of the mayor and council in choosing a successor to the relator in the office. Counsel in their argument discussed the legality of the relator's election under the provisions of the city charter, as well as the validity of the corporate action in choosing the one designed to succeed him. The latter subject was, in our judgment, beyond the scope of this litigation. We are not told by the case presented who, when the writ of certiorari issued, was in possession of the office; but, whether the subsequent appointee was or was not the incumbent, he was not and could not be a proper party under this writ. If he were in and claiming right to the office, such right could be challenged only on quo warranto. A number of quite recent decisions in the state serve to define in procedure affecting office, the boundary line...