Twp. of Teaneck v. Volcker
| Decision Date | 18 July 1942 |
| Docket Number | No. 14.,14. |
| Citation | 27 A.2d 199,128 N.J.L. 481 |
| Parties | TOWNSHIP OF TEANECK v. VOLCKER. |
| Court | New Jersey Supreme Court |
Syllabus by the Court.
The allowance of mandamus rests in judicial discretion. It is only used when the act to be done is a ministerial one merely and the duty to perform it in a definite way is clear.
Mandamus will not issue to interfere with the discretion of an official having control of the police force of a township in his management of that force.
Mandamus proceeding by Township of Teaneck, relator, against Paul A. Volcker, to compel the respondent, as township manager, to appoint one of two lieutenants of police as captain of police. On demurrer to return to the writ of mandamus.
Judgment for respondent on the demurrer.
May term, 1942, before BROGAN, C. J., and PARKER and PORTER, JJ.
Arthur T. Vanderbilt, of Newark (G. Dixon Speakman and Myrtile Frank, Jr., both of Newark, on the brief), for relator.
William J. Morrison, Jr, of Hackensack, for respondent.
The writ calls upon the respondent, who is township manager of the township of Teaneck in Bergen County pursuant to the Municipal Manager Act , to appoint as captain of police one of two lieutenants of police who had passed the required Civil Service examination in 1939. The writ was allowed on December 22, 1941. The writ charges that respondent had "failed and neglected" to make the appointment, though it was his duty to make it, and to appoint one or the other of the candidates. The return admits all the essential facts pleaded by way of inducement, but denies that respondent "failed or neglected" to appoint, and avers that he refused to appoint, because (a) the local chief of police had reported that under the law only these two lieutenants were eligible to compete, that he felt that no promotion should be then made, and recommended the promotion of three sergeants to the rank of lieutenant: and that this report had been read at a Council meeting on November 21, 1939; (b) that on December 5, 1939, the Council directed the preparation of an amended ordinance which, among other things, would eliminate the restriction of the number of lieutenants to two; (c) that such ordinance was adopted on June 4, 1940 (a copy is annexed to the return); (d) that on April 1, 1941, three additional lieutenants were duly appointed, and confirmed by the Council; but (e) that on October 7, 1941, the Council by resolution called for the appointment on or before October 14 of one of the candidates who had been certified, and who would lose the benefit of their examination unless such appointment be made before November 1, 1941; (f) that respondent on October 14 by letter to the Council (copy included in the return) refused to make the...
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