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State v. Jones

Decided: August 22, 1949.

THE STATE OF NEW JERSEY, EX REL., WM. ECKELMANN, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RELATOR,
v.
HAROLD J. JONES, DEFENDANT RESPONDENT



Waesche, J.s.c.

Waesche

The plaintiff-relator began this action by filing an information in the nature of a writ of quo warranto. The information challenges the right of the defendant-respondent, Harold J. Jones, to hold office as a patrolman in the police department of the Village of Ridgefield Park, Bergen County, New Jersey. The relator is a corporation of the State of New Jersey, and a taxpayer of the Village of Ridgefield Park.

The information avers that the respondent unlawfully holds the office of patrolman in the police department of the Village of Ridgefield Park, because, according to the allegations of the information, the respondent was appointed patrolman on March 28, 1947, and he was then 33 years of age and not a war veteran. The relator relies upon chapter 219 of the laws of 1945 (N.J.S.A. 40:47-4), which prohibits the appointment of any person to the police force of a municipality, who is more than 30 years of age, except a war veteran. The respondent was born February 22, 1914; hence, he was 33 years of age in March, 1947, and, it is agreed, that he is not a war veteran.

The respondent claims that he was duly and legally appointed a patrolman in the Ridgefield Park Police Department between June 5th, and June 8th; and that said appointment was to take effect June 16, 1944. At that time the statute provided that no person should be appointed a member of the police force of any municipality who was more than 35 years of age (P.L. 1939, c. 318). Since in June, 1944, the respondent was only 30 years of age, he was then eligible for appointment as a police patrolman.

The Village of Ridgefield Park is governed by the provisions of the Walsh Act, chapter 221 of the laws of 1911 (R.S. 40:70-1 et seq.). In June, 1944, Herbert I. Lowe was the Mayor of the Village of Ridgefield Park and the Director of the Department of Public Safety. In March and April, 1947, the said Herbert I. Lowe was a member of the Board of Commissioners and the Director of the Department of Public Safety. The police department is in the Department of Public Safety, and Herbert I. Lowe was its director in June, 1944, and, also, in March and April, 1947. As the Director of the Department of Public Safety and of the Police Department, Herbert I. Lowe had full authority to make all appointments to the police force (Rubenstein v. Bayonne , 121 N.J.L. 97; Hayes v. Atlantic City , 8 N.J. Misc. 607).

The Village of Ridgefield Park has not adopted the Civil Service Act of New Jersey (R.S. 11:19-1 et seq.).

On March 14, 1939, the Village of Ridgefield Park adopted an ordinance establishing and regulating a police department. The ordinance provides that the "Police Department" shall contain "such number of patrolmen as the Director may deem necessary," and that all appointments to the police department "shall be made by the Director."

In the minutes of the meeting of the Ridgefield Park Board of Commissioners held on April 8, 1947, appears the following excerpt under "Communications:"

"From Mayor Lowe advising of the appointment of Harold J. Jones as a permanent member of the Ridgefield Park Police Department with rank of patrolman, such appointment to be retroactive to June 16, 1944, the date he originally joined the Department. Communication ordered filed for record."

The relator insists that respondent's appointment as patrolman in the Ridgefield Park Police Department can only stem from the appointment referred to in the aforementioned minutes of April 8, 1947, and that said appointment cannot be retroactive or relate back to any appointment made prior to March 28, 1947. If the relator is correct in its contention, then the respondent's appointment was illegal, and void, because he did not then possess the statutory qualification as to age. The respondent was then, March or April, 1947, 33 years of age, and the statute then provided that no person more than 30 years of age could be appointed to the police department of any municipality. This statutory requirement could not be circumvented and defeated merely by the Director of Public Safety making the appointment retroactive to some date prior to the enactment of the statute. Consequently, if respondent's appointment is legally good and valid, it must have been made and become effective prior to the adoption of chapter 219 of the laws of 1945, which statute prohibits the appointment of any person more than 30 years of age, other than a veteran, to the police force of a municipality.

At the hearing in this matter, Herbert I. Lowe, the Director of Public Safety and of the Police Department, appeared as a witness and testified that sometime between June 5, and June 8, 1944, he appointed the respondent a patrolman in the Ridgefield Park police department, effective June 16, 1944. This appointment was made orally at the Ridgefield Park municipal building in the presence of the chief of police, Joseph E. Gorman. The chief of police also testified that between June 5, and June 8, 1944, Director Lowe appointed the respondent a patrolman in the Ridgefield Park police department. The respondent likewise testified that he was appointed a patrolman in the police department between June 5, and June 8, 1944, by Mayor Lowe. There is no testimony, or other evidence, that this oral appointment did not actually take place as related by these three witnesses. Their testimony must be accepted as true.

On the afternoon of June 16, 1944, the respondent reported to the chief of police at the police department in the municipal

building, and received from the chief his, respondent's, police equipment, which included his police badge and hat piece, signifying that he was a member of the Ridgefield Park Police Force. The respondent then took his oath of office, as required by law (R.S. 40:46-19, 41:1-1), before the village clerk, Elwood G. Hoyt, to "perform all the duties of the office of patrolman of the Village of Ridgefield Park."

In addition to the statutory requirement concerning the oath of office, the village ordinance establishing the police department provides that every member thereof shall, before entering upon the performance of his duties, take and subscribe to an oath of office, which oath shall be filed with the village clerk. This was done on the afternoon of June 16, 1944, as above stated.

After the oath of office was administered, the chief of police told respondent to report for duty at 6:50 o'clock that evening. Pursuant to instructions, at 6:50 P.M., on June 16, 1944, the respondent reported at police headquarters for duty. He was dressed in the regular uniform of a Ridgefield Park policeman, and wore a policeman's badge and full equipment. The chief of police detailed him to patrol, on foot, the Main Street business district of Ridgefield Park, and respondent immediately proceeded to carry out this police assignment. At 8 o'clock that same evening, Sergeant Booth of the Ridgefield Park police force ordered the respondent, who was then performing his assigned duty as a policeman, to report at the mayor's office in the municipal building. In response to that order, respondent went to the office of the village clerk, which was next to the mayor's office. In the presence of the chief of ...


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