Ziegler v. City Manager

• Citation: 180 A. 225
• Decision Date: 22 July 1935
• Docket Number: No. 243.,243.
• Parties: ZIEGLER v. CITY MANAGER et al.
• Court: United States State Supreme Court (New Jersey)

180 A. 225

ZIEGLER

v. CITY MANAGER et al.

No. 243.

Supreme Court of New Jersey.

July 22, 1935.

Mandamus by William Ziegler against the City Manager and City Council of the city of Hackensack to compel the city authorities to reinstate relator to membership and employment in the fire department of the city of Hackensack. On rule to show cause.

Rule dismissed.

Argued May term, 1935, before PARKER, CASE, and BODINE, JJ.

Charles E. McCraith, Jr., of Newark, for relator.

Donald M. Waesche, of Hackensack, for respondents.

CASE, Justice.

On November 17, 1914, the Hackensack improvement commission passed an ordinance setting up a paid fire department, and on December 7, 1914, appointed William Ziegler as chief. On December 18, 1914, the appointment was revoked. However, Ziegler was forthwith appointed acting chief, and on December 29, 1914, was again appointed chief. He served under the last appointment until October 16, 1933, when the office of fire chief was abolished. Forthwith Ziegler's name was dropped from the roll. There were no charges of dereliction in duty and no hearing. On writ of certiorari it was decided that the resolution abolishing the office of chief of the fire department was lawful. Ziegler v. Hackensack, 113 N. J. Law, 215, 174 A. 199, affirmed 114 N. J. Law, 186, 176 A. 324. Ziegler now seeks a writ of mandamus to command the city authorities to reinstate him "to membership and employment in the Fire Department of the City of Hackensack."

It is first argued on behalf of relator that his removal from employment in the fire department without charges or hearing is forbidden by the Home Rule Act, chapter 152, P. L. 1917, p. 319, which, in section 3 of art. 17 (Comp. St. Supp. 1924, § *136—1703), provides that the members of a fire department shall not be removed for any other cause than incapacity, misconduct, nonresidence, or disobedience of just rules and regulations, and in section 5 of the same article, as amended by chapter 240, P. L. 1928, p. 420 (Comp. St. Supp. 1930, § *136—1705), provides that there shall be no removal except upon written charges and after public trial. There has been no removal other than that the office which relator filled has been abolished.

It is said, however, that aside from Ziegler's office as chief he was a member of the department and that he may not be deprived of that membership except upon charges and hearing. During the period that relator was chief, he was, of course, a member of the department. He was a member because he was chief. There is no membership in the department except as one has office or employment therein. State v. Kennedy, 69 Conn. 220, 37 A. 503, 505, and Brownell v. Russell, 76 Vt. 326, 57 A. 103, are cited contra. We do not so read them. In the former case it is said: "It seems, however, to us that the controlling intention of the legislature as expressed by its acts does not give to the chief of police two distinct offices, held by distinct tenures, and subject to distinct processes of removal. * * * The chief of police cannot be said to hold a distinct office as policeman merely because certain of his powers, as well as his tenure of office and method of removal, are prescribed by the charter in prescribing the powers, tenure of office, and method of removal of policemen. * * *" It is retention of one's office or of one's employment that the statute protects. The only office or employment that relator had, or had ever had, was that of chief; saving a temporary appointment as acting chief which had the same legal aspect. That office was lawfully terminated. Relator does not suggest the character of membership which remained in him after he ceased to be chief. He holds himself out as willing to take any employment in the service; but he seeks a writ of mandamus, the function of which is to require the doing of some particular thing therein specified, 3 Bl. 104; Rosenfeld v. Einstein, 46 N. J. Law, 479, and the legal right to which must be clear, Uszkay v. Dill, 92 N. J. Law, 327, 106 A. 17. We are concerned not with the character of employment which relator is willing to take, but with what specific act, if any, the city should be compelled to do. If a writ should issue in the terms of the rule, it would in effect simply direct the city to give relator a job in the fire department— not to reinstate him to a named position. What position is sought? The ordinance specifies the remaining employments of the service as those of assistant engineers, captains, lieutenants, drivers, tillermen, laddermen, hosemen, and privates, and of such additional officers as shall be deemed necessary. If there be none of these vacant, is a position to be created? It is said that since relator was dismissed new members have been appointed to the force; but are such to be ousted? They who are not parties to the litigation? The application lacks particularity.

McCann v. New Brunswick, 73 N. J. Law, 161, 62 A. 191, is...