On appeal from the Superior Court, Law Division.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant and Burling. For affirmance -- Justice Wachenfeld. The opinion of the court was delivered by Vanderbilt, C.J.
[4 NJ Page 208] This is an appeal from a judgment of the Superior Court, Law Division, dismissing an information in the nature of a writ of quo warranto. The appeal was taken to the Appellate Division and was certified by this Court on its own motion.
The plaintiff challenges the right of the defendant to hold office as a patrolman in the police department of Ridgefield Park, a village governed by the provisions of the Walsh Act (R.S. 40:70-1 et seq.) but which had never adopted the Civil Service Act (R.S. 11:19-1 et seq.). In 1939 the village passed an ordinance regulating its police department, the pertinent portions of which are:
"2. The Police Department of the Village of Ridgefield Park (hereinafter referred to as the Department), shall consist of the following: * * *
"(d) Such number of patrolmen as the Director may deem necessary * * *
"(i) A Reserve Force subject to the provisions of Section 7 hereof. * * *
"(a) The Director may establish a Reserve Force by appointing Reserve Policemen or Policewomen in such number as he may determine, not exceeding in number the number of members on the permanent force. Members of the Reserve Force shall not be considered as members of the permanent force and shall not share in or become members of the Police Pension Fund.
"(b) Such appointment as a member of the Reserve Force may be terminated by the Director at any time without cause or hearing. * * *
"(d) The Director may detail for special service, whenever in his opinion it shall be necessary, as many Reserve Policemen or Policewomen as he shall deem necessary. For the duration of such special service the Reserve Policemen or Policewomen so designated shall be constituted and vested with the authority of special officers of the Village of Ridgefield Park, as provided in Section 40:47-19 of the Revised Statutes of 1937, its amendments and supplements. While performing special service members of the Reserve Force shall have the powers and duties of patrolmen of the Department and shall be subject to the Departmental rules.
"(e) Reserve Policemen or Policewomen while on special service, shall be paid on a per diem basis at the same rate as a patrolman in the Department in the first year of service. * * *
"30. All appointments to and promotions in the Department shall be made by the Director on written notice to the Chief of Police and the Village Clerk. * * *"
Sometime between June 5th and 8th, 1944, the Mayor of Ridgefield Park and its Director of the Department of Public Safety, in the presence of the Chief of Police, stated orally to the defendant, "You are engaged as a policeman, as a
patrolman, in the Police Department of the Village of Ridgefield Park, effective June 16, 1944." On that day the defendant was issued a uniform and other policemen's gear, took the oath of office of a patrolman, was assigned a foot patrol beat, and went on duty at 7 P.M. At about 8 P.M. he was instructed by the sergeant to report to the police station, which he did, and he was there referred to the Village Clerk. The defendant was asked to and voluntarily did sign a letter of appointment, though only after he called the Village Clerk's attention to the fact that he was supposed to be a regular and not a ...