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Albert v. Caldwell

Decided: October 16, 1939.

FRANK J. ALBERT, JR., ET AL., PROSECUTORS-RESPONDENTS,
v.
MAURICE H. CALDWELL, DIRECTOR, ETC., DEFENDANT-APPELLANT; JAMES CARONIA, PROSECUTOR-RESPONDENT, V. MAURICE H. CALDWELL, DIRECTOR, ETC., DEFENDANT-APPELLANT



On appeal from a judgment of the Supreme Court.

For the appellant, Edmond J. Dwyer and Joseph F. Zeller.

For the respondent Caronia, James A. Palmieri and Frank A. Palmieri.

For the respondents Albert et al., Lord & Lord.

Donges

The opinion of the court was delivered by

DONGES, J. On September 26th, 1938, the director of public safety of the city of Orange issued an order, known as Order No. 35, the pertinent part of which is as follows: "Effective October 1st, 1938, the services of members of the Chance Force, or Chancemen, will be dispensed with." Twenty chancemen were affected by the order. A certiorari to review the order was granted and Mr. Justice Parker set it aside. This appeal is from this action.

There were two writs issued, one at the instance of prosecutor James Caronia, and the other at the instance of prosecutor Frank J. Albert, Jr., and others. No objection is made to the joinder of the prosecutors, although there seems to be no authority for such joinder. See rules 169, 171 of the Supreme Court. Bakely v. Nowrey, 68 N.J.L. 732. We proceed to the merits.

The prosecutors-respondents admittedly were all members of the chance force of the Orange police department.

Two points are argued by appellant. (1) That prosecutors-respondents are, as a matter of law, not protected by tenure of office, but, on the contrary, are subject to removal without cause and without a hearing; and (2) that the voters of Orange by referendum, on November 2d, 1937, adopted the Civil Service act, and, therefore, the director of public safety was precluded from continuing in office temporary employes, including the members of the chance force.

In the appellant's brief it is said: "It is admitted on behalf of defendant-appellant that the prosecutors-appellees are members of the city of Orange police department, but that a distinction must be made between 'regular' members of the police department and 'temporary' members of the police department, as it is respectfully urged that the prosecutors-appellees were but 'temporary' members * * *."

Appellant's case is based upon the claim that these chancemen were temporary employes. The record discloses that one of them has been employed in that capacity since June 12th, 1919, and the others for varying terms of service.

The ordinance presently controlling the department, adopted December 12th, 1922, provides: "The officers of the Police department are hereby constituted and shall be known as follows: a. One Chief. b. One Captain. c. Such number of Lieutenants as may be deemed necessary. d. Such number of Sergeants as may be deemed necessary. e. Such number of Patrolmen as may be deemed necessary. f. Such number of Chancemen as may be deemed necessary." The provision for chancemen appears in the ...


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