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Rubenstein v. Board of Commissioners

Decided: September 8, 1938.

HARRY RUBENSTEIN, PROSECUTOR,
v.
BOARD OF COMMISSIONERS OF THE CITY OF BAYONNE, AND THE CITY OF BAYONNE, A MUNICIPAL CORPORATION, DEFENDANTS; ROBERT HANLON, PROSECUTOR, V. BOARD OF COMMISSIONERS OF THE CITY OF BAYONNE, AND THE CITY OF BAYONNE, A MUNICIPAL CORPORATION, DEFENDANTS; HARRY HAUSHEER, PROSECUTOR, V. BOARD OF COMMISSIONERS OF THE CITY OF BAYONNE, AND THE CITY OF BAYONNE, A MUNICIPAL CORPORATION, DEFENDANTS



On writs of certiorari.

For the prosecutors, Spaulding Frazer.

For the defendants, Alfred Brenner.

Before Justices Case, Donges and Porter.

Case

The opinion of the court was delivered by

CASE, J. The three prosecutors were appointed on January 3d, 1938, to their several positions in the police and fire departments of the city of Bayonne by Horace K. Roberson, commissioner of the department of public safety; Rubenstein, a newly appointed patrolman on the police force; Hanlon, a newly appointed fireman in the fire department; and Hausheer, previously a fireman, promoted to the position of chauffeur in the fire department. At the same time and under the same circumstances the commissioner made other new appointments of eight patrolmen in the police department and of eight firemen in the fire department and promotions of seven existing members of the police department and of five existing members of the fire department. Less than two weeks thereafter Roberson was transferred to the commissionership of the department of public affairs. Counsel consider that the fate of all thirty appointees follows that of the three prosecutors. Perhaps so; but what, and all that, we are called upon to do is to decide the issues on the three writs of certiorari outstanding

under the above titles, which have been consolidated in the state of case and covered by one set of briefs.

The city of Bayonne is under the commission form of government. On May 21st, 1935, more than two and onehalf years before the prosecutors were appointed, the present board of commissioners organized and lodged "all of the executive, administrative, judicial and legislative powers, duties and authority" relating to the police department and the fire department in the department of safety, vested the director of that department with all the "powers, authority, rights and duties vested in or given by any statute, charter or ordinance relating to" the police department and the fire department and ordered that the said director "shall perform all the duties imposed by law with respect thereto." There were ordinances for the establishment, maintenance, regulation and control of the police department and of the fire department. The appointments of the prosecutors and of all the other appointees were strictly within the provisions, numerically and in every other respect, of the ordinances. Those ordinances were not, and have not been, amended to bear upon the pending questions. Each of the persons involved possessed the qualifications of the position to which he was named, took and subscribed to the oath of office, entered upon the performance of his official duties and continued in service until the passage of the resolutions next to be mentioned. No charges have been brought against them and no hearing preliminary to the passage of the ordinances of dismissal was accorded. It does not appear when the vacancies, or any of them, filled by Director Roberson occurred. It does not appear that the vacancies had existed for any considerable period of time or why, if they had so existed, they were left unfilled. No policy of municipal government, either unanimous or disputed, antedating the appointments, is shown. Suggestions of planned economy are presented in defendants' brief, but they are without support in either the proofs or the stipulated facts.

The writs bring up for review two resolutions passed by the Board of Commissioners on January 15th, 1938, one directed

at the appointments and promotions in the police department and the other at the appointments and promotions in the fire department. The resolutions denounce the appointments and promotions as "unlawful, illegal, invalid and void," although they name no grounds for the denouncement and specify no particulars of imperfection. In terms they rescind and vacate the several appointments and promotions, dismiss the new appointees and demote to their original positions those who had been promoted.

It is said by the prosecutors, rightly, as we believe, that the Board of Commissioners had no authority under the circumstances to dismiss the prosecutors and that it was not for the board, as a court, to pass judgment in that fashion. It is settled that after the various powers of government in commission controlled cities have been distributed among the several departments and the appointments of directors have been made the executive and administrative powers are to be exercised by the respective commissioners presiding over the several departments and not by the whole body of commissioners. Sykes v. Heinzman, 100 N.J.L. 12; Seaman v. Strollo, 105 Id. 570; Bogle v. Woods, 10 N.J. Mis. R. 858. The power to dismiss lay with the director and not with the board. Foley v. Orange, 91 N.J.L. 554. The circumstances under which this court in Spears v. Commissioners of North Bergen, 10 N.J. Mis. R. 962, sustained the action of a board of commissioners in abolishing certain positions by ordinance and thereupon declaring, by resolution, appointments to those ...


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