Zober v. Turner, 71.

• Decision Date: 03 February 1930
• Docket Number: No. 71.,71.
• Citation: 148 A. 894
• Parties: ZOBER v. TURNER, Director of Department of Public Safety.
• Court: New Jersey Supreme Court

148 A. 894

ZOBER

v. TURNER, Director of Department of Public Safety.

No. 71.

Court of Errors and Appeals of New Jersey.

Feb. 3, 1930.

(Syllabus by the Court.)

Appeal from Supreme Court.

Certiorari by Richard O. Zober against Benjamin F. Turner, Director of the Department of Public Safety of Passaic, to review a judgment dismissing prosecutor from the office as Chief of Police of said city. The Supreme Court affirmed the judgment of dismissal (7 N. J. Misc. Rep. 171, 144 A. 608), and prosecutor appeals. Affirmed.

Filbert L. Rosenstein, of Paterson, and Frederick S. Ranzenhofer, of Passaic, for appellant.

Joseph Weinberger, of Passaic, and Merritt Lane, of Newark, for respondent.

WALKER, Chancellor. This is an appeal from a judgment of the supreme court on certiorari. The prosecutor-appellant, who was Chief of Police of Passaic, was tried before the Director of the Department of Safety of Passaic (which included the police department), on sundry charges, was found guilty and dismissed from office. He obtained a certiorari from the supreme court, which, after hearing, affirmed the judgment of the Director. The prosecutor-appellant appeals here and assigns seven grounds of appeal from the supreme court. The first ground was enough, and under it reliance might be had upon any one or more of the reasons on certiorari filed in the supreme court and brought up with the transcript. Burhans v. Paterson, 99 N. J. Law, 490, 123 A. 883. And the appellant was limited to questions set up in the reasons and argued in the court below. Franklin v. Millville, 98 N. J. Law, 262, 119 A. 29. The reasons and the grounds of appeal are argued here under seven heads in the prosecutor-appellant's brief. The first five go to the question of bias in the Director who tried the prosecutor-appellant. The sixth, was on the question of admission and rejection of evidence, and the seventh, was that only imperative necessity would justify affirming the judgment of the Commissioner, and that none such existed in the case. This, too, goes to bias. So. this leaves only for consideration the questions of evidence and of bias.

In Walz v. Nicolosi, 1 N. J. Misc. Rep. 80, the supreme court held that where it was alleged that the judgment was contrary to evidence, and it disclosed or showed certain alleged facts, but that no ruling by the trial court alleged to be erroneous is pointed out, there is nothing to review; while, under rule 145 of the supreme court an appeal is to be heard solely on the points of law specified. And in Kotwica v. Daneski, 1 N. J. Misc. Rep. 141, it was held that the points in appellant's brief corresponding to certain specifications were not properly before the court, as the specifications did not specify, but merely asserted generally the admission of illegal evidence and the exclusion of legal evidence: that it was not sufficient, citing cases.

The supreme court in its opinion herein said that the prosecutor entered objections to the admission of testimony against him and to the exclusion of testimony offered for him, but specifies no legal ground upon which may be rested an objection to the procedure or action of the commissioner, except in the case of the witness Shadd, which they examined and found to be immaterial to the question propounded to the witness. But assuming the objection to be properly taken, there is evidence in the transcript to support the judgment of the supreme court it has been repeatedly held that a factual question supported by such evidence will not be reversed. Breitbart v. Lurich, 98 N. J. Law, 556, 120 A. 11 (court of errors and appeals); Eberle v. Stegman, 98 N. J. Law, 879, 880, 121 A. 618 (court of errors and appeals); Grannan v. Fox, 100 N. J. Law, 288, 290,126 A. 398 (court of errors and appeals).

However, the supreme court found abundant evidence of the guilt of the accused in this case. They said among other things: "Our reading of the testimony indicates that he was aware of the illegal practices which were thus carried on, and that alone would be enough to sustain the charge made against him in this respect." And our examination of the testimony leads to the same conclusion.

This leaves for consideration the assertion of the prosecutor-appellant that the Director of the Department of Public Safety of Passaic was so biased and prejudiced that, as a result, he did not receive a fair trial, one to which he was entitled before he could be dismissed from office.

That the Director was prejudiced against the prosecutor-appellant we think may be inferred from his assertions concerning the prosecutor-appellant and by his actions toward him, but if there were any other judge who could have sat upon the case and tried the prosecutor-appellant, we think that this record might show reversible error and demand a new trial.

The prosecutor-appellant first relies upon the Home Rule Act, being an Act Concerning Municipalities, P. L. 1917, p. 319, and particularly Art. XVI, entitled Police, which in § 5 at p. 360, provides inter alia that no officer shall be removed except for just cause as therein provided and then only after written charges shall have been preferred and publicly examined into by the proper board or authority upon reasonable notice to the person charged. There is no question here as to charges having been preferred, properly served and brought to trial, but objection only to the personnel of the official conducting the trial, he being accused of bias and prejudice against the prosecutor-appellant, and, therefore, not impartial within the meaning of the law.

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