For the relator, Charles E. McCraith, Jr.
For the respondents, Donald M. Waesche.
Before Justices Parker, Case and Bodine.
The opinion of the court was delivered by
CASE, J. On November 17th, 1914, the Hackensack improvement commission passed an ordinance setting up a paid fire department and on December 7th, 1914, appointed William Ziegler as chief. On December 18th, 1914, the appointment was revoked. However, Ziegler was forthwith appointed acting chief and on December 29th, 1914, was
again appointed chief. He served under the last appointment until October 16th, 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.L. 215; affirmed, 114 Id. 186. 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 (Pamph. L. 1917, ch. 152), which, in section 3 of article 17, provides that the members of a fire department shall not be removed for any other cause than incapacity, misconduct, non-residence or disobedience of just rules and regulations, and in section 5 of the same article as amended by chapter 240 (Pamph. L. 1928), 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 (Conn.), 37 A. 503, and Brownell v. Russell (Vt.), 57 Id. 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 ...