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Johnson v. City of Wildwood

Decided: April 30, 1936.

HOWARD JOHNSON, PROSECUTOR-APPELLANT,
v.
THE CITY OF WILDWOOD, NEW JERSEY, MAYOR DORIS W. BRADWAY, COMMISSIONERS FREDERICK MCMURRAY AND ROLAND CORSON AND CITY CLERK GUS HEIL, ALL OFFICIALS OF THE CITY OF WILDWOOD, NEW JERSEY, DEFENDANTS-RESPONDENTS



On appeal from the Supreme Court, whose per curiam opinion is printed in 13 N.J. Mis. R. 503.

For the appellant, Bleakly, Stockwell & Burling.

For the respondents, William George.

Perskie

The opinion of the court was delivered by

PERSKIE, J. This appeal brings up for review a judgment of the Supreme Court dismissing prosecutor's writ of certiorari by which he challenged and caused to be reviewed his dismissal as a police officer of the police force of the city of Wildwood. 13 N.J. Mis. R. 503; 180 A. 232 (1935).

We are met, in limine, with these prefatory remarks by the court:

"We think it safe to say that if the filed reasons had stated certain grounds appearing plainly on the record * * *

this court would have little difficulty in setting aside the conviction and dismissal. The trial was disorderly throughout, as the transcript of the testimony plainly shows. Fundamentally, the specifications seem insufficient, as they allege without assigning any date, that prosecutor observed the presence of certain slot machines at specified places and willfully failed and neglected to report them; and when questioned why he had so omitted to report, said that they were on another man's beat; also that he did 'willfully make false and untrue statements to "the chief of police,"' &c. The trial was in 1934, and it appeared that the dereliction if any, was in 1932, when the chief of police who signed the complaint was not in office as such. But no objection was made to the charge and specification. What is before us is the transcript of a sort of go-as-you-please trial, with no substantial legal point now argued; based on anything raised below."

Was the court below right in refusing to set aside the conviction and dismissal? We think not. We do not, it is true, consider any question not properly raised and argued below unless it goes to jurisdiction, or involves public policy (Dickinson v. Inhabitants of the City of Plainfield (No. 22, October term, 1935, Court of Errors and Appeals), or relates to an error which is apparent on the face of the record. Griffith v. West, 10 N.J.L. 350; Treasurer of Plainfield v. Marcellus, 68 Id. 201; Rutherford v. Meginnis, 72 Id. 444; 60 A. 1125; Cardillo v. Bound Brook, 3 N.J. Mis. R. 249; 127 A. 792. Thus where the error appears on the face of the record, it has been held that a general reason alleging the unlawfulness of the conviction, as is alleged in the case at bar, in the ninth reason, otherwise insufficient, because of its vagueness, is sufficient. Treasurer of Plainfield v. Marcellus, supra.

In addition, however, to that which has been written, we are of the further opinion that the prosecutor was not, as claimed for him under the second reason, given a fair trial. For many years our legislature, in pursuance of a sound public policy, has given to certain public servants and officials tenure of office. Wisely protecting and safeguarding that

tenure, no policeman may be removed for political reasons or for any other cause than those specifically enumerated in the applicable act; it is the declared intent of that act that every person against whom a charge or charges be preferred be given a fair trial upon said charge and charges, and every reasonable opportunity to make his defense, if any, he has or chooses to make. (Article XVI (Police) ...


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