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Parks v. Common Council

Decided: April 13, 1933.

FRANK PARKS, PROSECUTOR,
v.
THE COMMON COUNCIL OF THE CITY OF RAHWAY AND THE CITY OF RAHWAY, A MUNICIPAL CORPORATION, DEFENDANTS



On certiorari.

For the prosecutor, Clarence A. Ward.

For the defendants, Fred C. Hyer.

Before Justices Parker, Lloyd and Heher.

Heher

The opinion of the court was delivered by

HEHER, J. By certiorari the prosecutor, who was a patrolman in the police department of the city of Rahway, challenges the validity of a resolution adopted by the Common Council of that city at a special meeting held on April 26th, 1932, whereby he was declared guilty of several charges of misconduct, and dismissed from said position. He was found

guilty of the following charges: (1) Intoxication on March 8th, 1932, during the period of an assignment to police duty; (2) leaving his post of duty without just cause; (3) conduct not becoming an officer or a gentleman, in that on the day aforesaid, while engaged in controversy with one David Ross and his wife, Clara, he used offensive, indecent and profane language, and committed assault and battery upon David; and (4) not properly patrolling his post of duty.

The grounds of attack urged by the prosecutor may be classified under four heads, viz.: First, there were no written charges filed; second, the prosecutor did not have a fair and impartial trial; third, there was no proof of any established rules governing the police department, and fourth, the determination was contrary to the weight of the evidence.

The prosecutor argues, in support of the first ground, that the council lacked jurisdiction to remove him from his position because of non-compliance with one of the essential requirements of section 5 of article 16 of chapter 152 of the Laws of 1917 (Pamph. L. 1917, p. 319 (at p. 360), as amended by chapter 240 of the Laws of 1928, Pamph. L. 1928, p. 418). The procedural requirement of this act, which prosecutor insists was ignored, is that, in cases of removal, the charges preferred against the officer or employe shall be in writing, signed by the person or persons making the same, and filed in the office of the municipal officer, officers or board in charge of the department in which complaint arises.

The charges were, in fact, reduced to writing. On April 22d, 1932, a notice in writing, signed by the city clerk was served upon the prosecutor. This notice contained a specification of the charges upon which he was subsequently tried, and he was therein advised that the council would hear the charges at a meeting to be held on April 26th, 1932, specially called for that purpose, and that he should appear at that time and present his defense. But the prosecutor insists that the charges thus preferred did not comply with the statute because (1) they were not signed by the person making the same; (2) they were not verified by the oath of such person, and (3) they were not filed in the proper municipal office.

The record shows that the charges were made by the chief of police. The notice served by the clerk advised the prosecutor that, by the direction of council, he was therewith transmitting the specific charges upon which his suspension from duty was based. On March 11th, 1932, the chief of police served upon the prosecutor, in writing, a specification of the charges, with the information that he would be officially informed in writing of the time and place designated for hearing of the charges. The prosecutor was tried upon these identical charges, and the additional one alleging intoxication. But counsel insists that the statute required a complaint signed and sworn to by David Ross or his wife, Clara. The statute makes no such requirement. It provides for a written, not a verified complaint, and we find no expressed legislative ...


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