Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
Plaintiff appeals from an order of the Superior Court, Law Division, dismissing his complaint and entering summary judgment in favor of defendant in an action in lieu of prerogative writs challenging his dismissal from the police force of the Borough of Bradley Beach, and seeking reinstatement to the force and payment of his regular salary from the date of his dismissal to the date of his reinstatement.
The complaint alleged merely that plaintiff was appointed to the police force on June 14, 1954, from which time until February 1, 1956 he duly performed all of the duties required of him as patrolman; that on January 24, 1956 the board of commissioners adopted a resolution dismissing him as a member of the police department from and after February 1, 1956; and that his dismissal on that date was improper, unwarranted, illegal and contrary to the statutes of New Jersey.
Upon motion of defendant the Law Division ordered plaintiff to serve and file a more definite statement, R.R. 4:12-5. He did, charging that (1) his dismissal was illegal and contrary to R.S. 40:47-5 -- which provides that members of a municipal police department shall hold their offices and continue in their respective employment during good behavior, efficiency and residence in the municipality -- in that he was dismissed for none of these reasons; (2) the dismissal was illegal and contrary to R.S. 40:47-6, as amended -- which provides that no person shall be removed from office or employment in any municipal police department for political reasons or for any cause other than incapacity, misconduct, non-residence, or disobedience of police rules and regulations, and that such removal shall be for just cause only, after written charges preferred and served, and after hearing -- in that no charges were preferred or hearing held, and the dismissal was for none of the stated reasons; (3) plaintiff being an honorably discharged veteran, his dismissal was contrary to the provisions of R.S. 38:16-1, as amended, in that he was dismissed without good cause and without a
fair and impartial hearing first being had; (4) the dismissal was for the purpose of providing for the reinstatement of one Trimpi (a former member of the police department who retired in 1952 because of permanent physical disability and who, upon his own application, was reinstated in December 1955), and was illegal and contrary to R.S. 43:16-2, as amended, which provides that a person may be reinstated to the police department by reason of recovery from disability if any position be available, in that there was no position available that would permit of Trimpi's reinstatement.
Having thus been informed of the precise nature of plaintiff's claim, defendant moved for an order dismissing the complaint and for summary judgment in its favor, upon the ground that the complaint failed to state a claim upon which relief could be granted. Attached to the notice of motion were the affidavits of the three members of the borough board of commissioners. These affidavits, practically identical in content, stated that prior to September 13, 1949 the police department consisted of 11 regular members; that subsequent to that date, by reason of a public referendum establishing a 40-hour work week, the membership was increased to 13; that Police Lieutenant Trimpi retired from the department on disability pension on July 1, 1952 and Police Captain McGarvey retired for years of service on April 27, 1954; that thereafter the department continued with 11 regular members and two special officers (plaintiff and one Rumsey); that in June 1954 Rumsey was appointed a regular member of the force and subsequently, on June 14, 1954, plaintiff was similarly appointed, thus making plaintiff the last man appointed to the regular police force; that Trimpi requested an examination by the Consolidated Police and Firemen's Pension Fund Commission which, after medical examination, found that he had recovered from his disability and so certified to the board of commissioners; that Trimpi then applied for reinstatement as a member of the police department, and on December 20, 1955 the board of commissioners by resolution reinstated him as lieutenant, effective December 28, 1955; that early in January 1956
the board of commissioners, in considering the 1956 budget, concluded it was necessary to reduce the budget insofar as possible; that the Director of the Department of Public Safety advised that in his opinion the police department could be run efficiently with a 13-man force, as before, and recommended that for economy reasons the force be reduced to 13 men, with resultant savings of $4,774; that on January 24, 1956 the board of commissioners adopted a resolution reducing the force to 13 members and dismissing plaintiff, effective February 1, 1956, because he was the last person appointed; and, finally, that since the last mentioned date the department had been operating in an efficient manner with 13 regular men.
The resolution dismissing plaintiff recites that "for an efficient and economical administration, a Police Department of thirteen (13) regular members is sufficient and adequate for the needs of the community," and that "good government dictates that the said Police Department shall be reduced to thirteen (13) regular members, for the purpose of economy, in the interests of efficiency and for the betterment of the public service."
Plaintiff filed a responsive affidavit denying he was dismissed for reasons of economy and efficiency and stated that the question of dismissal for the reasons alleged "involves the good faith" of the board of commissioners and entitled him to a full hearing. The affidavit points out that by referendum at the November 7, 1955 election, the electorate voted in favor of a 15% increase in police salaries; that although Trimpi's salary at the time of his retirement in 1952 was only $3,750, an ordinance was adopted at about the time of his reinstatement fixing the salary of police lieutenant at $5,200; that the salaries of other borough employees had been increased 7 1/2% on January 1, 1956 on the board's own motion; that the 1956 budget provided for increased salaries and wages for various municipal officers and employees, which are detailed, clearly indicating that economy and efficiency were not the motivating factors for plaintiff's dismissal; that although prior to plaintiff's dismissal
police shifts were rotated every few weeks, since February 1, 1956 members of the police department were obliged to continue working on night shifts for weeks at a time, without rotation, because of Lieutenant Trimpi's failure to serve on certain night shifts. In his affidavit plaintiff again asserts his rights under N.J.S.A. 40:47-5, 40:47-6 and 38:16-1, and claims that ...