Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.
After hearing on charges the respondent, Anthony J. Salimone, was dismissed as police chief by the Mayor and Council of the Borough of Park Ridge, N.J. The Civil Service Commission reversed and ordered reinstatement. The borough is prosecuting this appeal.
Salimone, who had been the police chief of Park Ridge for many years, was indicted by the Bergen County Grand Jury on February 13, 1951. The indictment charged him and others with conspiracy to make book upon the running of horses, contrary to R.S. 2:119-1 (now N.J.S. 2 A:98-1). The overt acts alleged to be in furtherance of the conspiracy were (1) the operation of a bookmaking establishment in a room of a dwelling house at 163 Morningside Avenue, Park Ridge, N.J., which was the home of one Conrad Grube, and (2) the payment by Salimone of $25 a week to Grube for the use of his home and the telephone installed therein to
facilitate the illegal activity. On the day the indictment was returned, Salimone was suspended from duty by the governing body of his municipality. At or about the same time, he was named defendant in another indictment which charged misconduct in office.
On October 24, 1951 Salimone was convicted in the County Court of the bookmaking offense. About five weeks later, and prior to the determination of his appeal therefrom to the Appellate Division, written charges of violation of the rules of the police department were filed against him with the mayor and council of the borough. The infractions cited were four in number. They alleged:
(1) He had been convicted under the indictment of conspiring to make book rendering him guilty of violation of subsection 11 of section 28 of the rules of the police department and of violating subsection 14 of section 20 of the borough ordinance which make violation of any criminal law ground for removal.
(2) "That on or about May 8, 1950, and on divers other dates, at Park Ridge, said Anthony J. Salimone did confederate, conspire and agree to pay to Conrad Grube certain moneys for the use of telephones and telephonic equipment at the premises known as No. 163 Morningside Avenue, Park Ridge, in pursuance of a conspiracy and unlawful agreement between the said Salimone and the said Grube, by means and in furtherance of which bookmaking and the receiving and placing of bets on races were to be conducted from said premises" by reason of which Salimone violated subsections 16 and 17 of section 20 of the ordinance referred to prescribing "conduct unbecoming an officer" and "conduct subversive of good order and discipline of the force."
(3) "That on October 19, 1949, while on patrol duty said Anthony J. Salimone did receive a call or request to report to No. 163 Morningside Avenue, Park Ridge, and did fail to make an entry in the police blotter indicating the action taken by him, or if no action was taken, the reason therefor, and did also fail to enter therein such other information and particulars thereof which are customary and usual to an intelligent report and record of police activity," which constituted "neglect of duty and conduct subversive of good order and discipline of the force, in violation of subsections 13 and 17 of section 20" of the ordinance referred to.
(4) "That on October 19, 1949, upon being called there, said Anthony J. Salimone found certain County officers present at 163 Morningside Avenue, Park Ridge, and was told by one or more of them that a dice game or other gambling activity was in preparation or in operation" and that Salimone "wholly disregarding his obligation as a member and officer of the police department * * *
failed to take or to record the names of all persons found therein or connected therewith, and failed to report said alleged violation to the police committee of the Borough Council, and failed to make any complaint thereof or in connection therewith" which constituted "conduct unbecoming an officer and conduct subversive of good order and the discipline of the force" and a violation of "subsections 13 and 14 of section 28 and of section 34 of the Rules of the Police Department" and of subsections 13, 16 and 17 of section 20 of the ordinance cited.
The rules of the police department impose upon the members thereof these duties:
"2. To preserve the public peace; to prevent and suppress breaches of the peace; to prevent the commission of crime; to detect and arrest persons committing crimes within the Borough; * * * to secure the best and all evidence possible or available with respect to the commission of crimes, breaches of the peace and violation of the municipal ordinances * * *.
4. He must at all times * * * conform to all the ordinances of the Borough and Rules of the Department."
Section 28 of the rules provides that the following acts or omissions shall be considered misconduct sufficient to warrant removal from the force:
"10. Incapacity, either mental or physical, lack of energy, or gross ignorance of the laws and regulations of the department.
11. Violation of any criminal law.
13. Conduct unbecoming to any officer and gentleman.
14. Conduct subversive of good order and the discipline of the force.
16. Failure to report a known violation of the law, or accepting a bribe or a favor as a consideration either for the performance or non-performance of his duty.
Section 34 of the rules requires every police officer, in case of crime:
"* * * to protect everything that might lead to the identification of the person or persons who might have committed the crime, then
immediately to get in touch with his superior officer, who, in turn, will see that the proper authorities are notified to obtain the necessary evidence in the way of fingerprints, etc."
The ordinance referred to in the complaint abstracted above provides among other things that a member found guilty of:
14. Violating any criminal law or penal ordinance.
16. * * * Conduct unbecoming an officer and a gentleman.
17. * * * Conduct subversive of good order and discipline of the force,"
may be removed from office. Section 20.
The mayor and council conducted a hearing on December 19 and 26, 1951, at which testimony was adduced in support of the charges. Salimone offered no defense. On December 26 he was found guilty of all four charges and a resolution was adopted dismissing him from the department.
Formal notice of dismissal was served personally on Salimone and a copy given to his counsel on the night of December 26. It was entitled: "Final notice of suspension, fine, demotion, removal or other disciplinary action affecting a permanent officer or employee in the classified civil service." (Emphasis ours.) It was addressed to Salimone and immediately below, in the center of the page, appeared:
The notice of dismissal was filed with the Department of Civil Service as required by R.S. 11:22-38 and R.S. 11:15-3. On January 7, 1952, the Department wrote the borough that "in the absence of an appeal, we have recorded your action in dismissing Anthony J. Salimone, Chief of Police, from the Police Department, effective December 26, 1951, * * *." This letter undoubtedly was written in conformity with R.S. 11:22-38 which ordains that such a dismissal shall not
take effect until approved by order of the Commission, and which provides also that if no application for investigation of the dismissal is made within the time limited "such order may be approved, as of course, without hearing or investigation."
With respect to appeals from such dismissals from service in municipalities which operate under the Civil Service Act (R.S. 11:1-1 et seq.; R.S. 11:20-1 et seq.), N.J.S. 11:2 A -1 provides:
"No employee of * * * any * * * municipality * * * shall be * * * discharged without the same right of appeal to the commission, which shall have the same power of revoking or modifying the action of such [municipality], as in the case of removal as provided in sections 11:15-2 to 11:15-6 of the Revised Statutes * * *."
Under R.S. 11:15-4 the appeal from a dismissal must be "received within ten days from the date of such removal." Section 38 (R.S. 11:22-38), which is in some measure in pari materia , says that the order of dismissal may be approved if within ten days after notification thereof the employee shall not "apply to the commission for an investigation of the charges * * *." And section 39 (R.S. 11:22-39) says that "if" such an application is made "within the time prescribed" the Commission shall fix a time and place for hearing.
Although it plainly appeared on the notice of dismissal that the Civil Service Act was applicable, Salimone did not appeal to the Commission within the ten-day period. Instead he filed a notice of appeal in the Bergen County Court on January 9, 1952, 14 days after his dismissal. When it was served on the proper official of the borough, if at all, does not appear. (See R.S. 40:47-10).
The appeal was taken to the County Court in error, counsel's affidavit indicating that he was unaware that the borough had previously adopted the Civil Service Act. He proceeded under R.S. 40:47-10, which provides for appeal to that court from such dismissals in municipalities not subject to civil service rule. However, it may be noted that even under this
statute the appeal must be taken within ten days after ...