On appeal from the Supreme Court.
For the prosecutor-appellant, Thomas Brunetto.
For the respondent-appellee, George S. Harris.
The opinion of the court was delivered by
HETFIELD, J. This is an appeal from a judgment of the Supreme Court, dismissing a writ of certiorari which was allowed the prosecutor-appellant by the Chief Justice, and argued before him as a single justice in accordance with section
5 of the Certiorari act. The prosecutor was a member of the police department of the town of Montclair, and on April 14th, 1930, a complaint was preferred against him by the chief of police. Thereafter, a hearing was had before the director of public safety, and the prosecutor was found guilty of three of the charges contained in the complaint, which in substance, alleged that he failed to report to the chief of police, or officer in charge, information pertaining to places where gambling was conducted, as well as a violation of an ordinance relating to gambling houses, and that he entered the place in question, while in uniform, although he was not engaged in the discharge of his duties as a police officer at that time. The prosecutor was dismissed from the police department and compelled to forfeit all pay from March 31st, 1930, to the date of the dismissal.
The first ground of appeal alleges in effect, that the director of public safety of the town of Montclair was not vested with jurisdiction to hear and determine the charges against the prosecutor. It is contended that the power to conduct such a hearing or trial, is vested in the board of commissioners, and that no action had ever been taken by the board of commissioners, in determining and assigning to the department of public safety, the powers and duties to be performed by it. These identical questions were passed upon unfavorably to the prosecutor, and we think properly so, by the Supreme Court in the case of Mee v. Town of Montclair, 157 Atl. Rep. 447; 9 N.J. Mis. R. 1208, the opinion, in part, reading: "The prosecutor, under point 1, attacks the jurisdiction of the director of public safety to try him; his point being that jurisdiction to try him rested with the town commissioners as a body.
But the town of Montclair at an election held in 1916 adopted the Walsh act, and our Court of Errors and Appeals held in Foley v. Orange, 91 N.J.L. 554; 103 Atl. Rep. 743, that the amendment to section 4 of that act approved April 13th, 1915 (Pamph. L., p. 494; Cum. Supp. Comp. Stat., §§ **136, 138), takes from the board of commissioners jurisdiction to try charges against a police officer and vests such jurisdiction in the commissioner of the department of public
safety. That the same principle applies to firemen as well as policemen cannot be doubted. Herbert v. Atlantic City, 87 N.J.L. 98; 93 Atl. Rep. 80.
The prosecutor, however, contends that in Montclair there had been no distribution of the powers among the five departments and no assignment of the commissioner who tried the prosecutor to the department of public safety. We find otherwise. Two resolutions were passed on May 15th, 1928, when the present commission was organized, which were designed to, and did, accomplish such purposes."
The resolutions referred to in the last paragraph of the opinion just quoted, were admitted in ...