On appeal from the Supreme Court.
For the respondent, William George.
For the appellant, Dominick F. Pachella.
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. This is an appeal from a determination of the Supreme Court, wherein, on certiorari to review a resolution adopted by the governing body of the borough of Fairview, a single justice of the Supreme Court, pursuant to the statute (Certiorari, 1 Comp. Stat., p. 403, § 5), reviewed the action of the governing body of the municipality and set aside its finding.
The respondent, a policeman of the borough, was charged with conduct unbecoming an officer in that he carried on an illicit relationship with one J.L., an unmarried woman, as a result of which an illegitimate child was born. Some months prior to being tried on these charges before the governing body he had been prosecuted and acquitted in the criminal court of Bergen county in a bastardy proceeding that arose out of the same alleged illicit relationship. On the charges prosecuted before the governing body of the borough, he was found guilty and dismissed from the police department.
The resolution of dismissal was set aside in the certiorari proceeding, as stated above, and the municipality appeals.
As a first point, the appellant municipality urges that the respondent should not be permitted to present in this court, as part of the record, the transcript of testimony taken at the trial of the police officer on these charges before the municipal body. The prosecutor of the writ, in the Supreme Court, did not cause the transcript of the testimony taken at the hearing to be made part of the return. As to this, it is sufficient to say that the Supreme Court justice who heard this matter permitted counsel for the prosecutor to supply this transcript at the argument of the cause without objection on the part of the present appellant. That being so,
it would be anomalous if this court were to consider this appeal on a record different from that which was before the Supreme Court. Had the testimony not been received in the Supreme Court, the resolution of dismissal would have been invalid in any event because the return to the writ, as filed originally, including the resolution of dismissal, contained no evidence upon which the dismissal could be based.
Where a proceeding, such as this, is summary in character, the record must contain a statement of the substance of the evidence in the matter in order that the reviewing court may ascertain whether the action of the board, in its disposition of the case, was supported by the evidence. Sawicki v. Keron et al., 79 N.J.L. 382; Marter v. Repp et al., 80 Id. 530; affirmed, 82 Id. 531; O'Driscoll v. Scott et al., 12 N.J. Mis. R. 516. This also was the rule at common law.
The order of the Supreme Court reversing the findings of the governing body recites that the proceedings whereby the officer was dismissed "were irregular and illegal." From the record before us we are unable to determine whether the Supreme Court set aside the dismissal of the prosecutor because the evidence was not sufficient to support the dismissal or nullified the municipal action for a reason legal in character. Since there is nothing in the record to indicate that the reversal of the dismissal was based on a fact determination by the Supreme Court, we must perforce consider the legal reasons that were filed in support of the prosecutor's position. They resolve themselves into two questions. The first was to the effect that the charges for unbecoming conduct could not lawfully be prosecuted against the officer since he has been acquitted in the bastardy proceeding and therefore the matter was res judicata. Obviously it was not. "The doctrine of res judicata is plain and intelligible and amounts simply to this, that a ...