For the prosecutor, Parsons, Labrecque, Canzona & Combs (Theodore D. Parsons, Theodore J. Labrecque and Thomas L. Hanson, of counsel).
For the defendant, Alton V. Evans.
Before Justices Bodine, Heher and Wachenfeld.
The opinion of the court was delivered by
HEHER, J. Certiorari was granted to review prosecutor's ouster, on July 12th, 1947, from the office of chief of police of the defendant municipality. After a hearing, the Township Committee found him guilty of five specifications of misconduct (Nos. 2, 3, 4, 6, 10); and there was also a finding (Charge 1) that at the time of his appointment to the office in question he "was over the age limit prescribed by the statute," and therefore the original appointment was void ab initio. Four additional specifications of misbehavior were
dismissed. Prosecutor was suspended from office prior to the presentation of the charges; and the suspension continued until his ouster.
Prosecutor is an honorably discharged veteran of World War I; and he invokes the protection of the War Veterans and Police Tenure of Office Acts. R.S. 38:16-1, 40:47-6.
But it is the insistence of the township that it had the right under the statute pertaining to townships (Pamph. L. 1899, pp. 372, 395, as supplemented by chapter 99 of the laws of 1918; R.S. 40:149-1, 40:149-2) "to dismiss the prosecutor at will until it established its police department in 1942, and thereafter because of his age." The act provides that the governing body of any township "wherein no police department has been established may appoint one or more suitable persons resident therein, or any constable of the county * * *, as police officers," subject to dismissal "at the will" of the governing body, at compensation to be fixed by ordinance or resolution. The specific contention is that, while prosecutor was appointed "chief of police" of the township on January 25th, 1928, and has continually served as such ever since, the local "police department" was not "established" until 1942, when prosecutor was 47 years of age, and under R.S. 40:47-4, as amended in 1939 (Pamph. L., p. 765), he was ineligible for appointment as a member of the police force, having passed the age of 35 years, and thus he has no title to the office.
Even so, prosecutor was a de facto officer; and this court has held that statutes of this nature make no distinction between officers de facto and officers de jure, and their protection extends to both classes, and the officer's ineligibility at the time of his appointment is not a ground for removal. Ouster is accomplished by quo warranto. Magner v. Yore, 75 N.J.L. 198. In a proceeding such as this, the title of the possessor of the office is ordinarily presumed valid. Loper v. Millville, 53 Id. 362. And, if we regard the action taken as a mere declaration of a vacancy in the office for ineligibility rendering the appointment void (vide Loper v. Millville, supra), it is not sustainable; for in our view a police department within statutory intendment was established in 1931,
when the township committee adopted an ordinance reciting that the township "has no recognized head of the public safety or police chief to whom the state police and others may call in such cases as would require the services of an authorized person," and providing that "for the better protection and suppression of crime and disorder" in the municipality, "some fit person shall be employed to act as police chief, under the direction of the Township Committee," at a fixed salary, payable monthly. Thus, there was created a department of public safety and police to meet the demonstrated need for a local police authority, consisting at the outset of a police chief subject to the direction of the governing body -- an institution in keeping with the statutory concept. Compare Moore v. Borough of Bradley Beach, 87 Id. 391; Travaline v. Paulsboro, 121 Id. 453. Thereby, there came into being a distinct division or branch of municipal administration -- an appointed sphere for the exercise of this portion of the police function. The determinative is not the number of the personnel, but rather the quality of ...