Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
On May 25, 1956 Acting Chief Bloor of the East Paterson Police Department preferred charges against respondent Patrolman Donohue, alleging that he had on May 24, 1956, while on duty and in violation of the local police ordinance, been under the influence of intoxicating liquor, used indecent, profane and harsh language, and failed to answer radio calls sent to his police car by headquarters. He suspended Donohue from active duty pending determination of the charges. The mayor and council then held a hearing, found Donohue guilty as charged and removed him from his position as police officer. He appealed to the Civil Service Commission which, after a hearing de novo , found him guilty of the charges but determined that the penalty of removal, in the light of all the circumstances revealed by the testimony, was too severe. It accordingly set the removal aside and reduced the penalty to a 60-day suspension. The borough appeals.
The borough does not dispute the findings of the Civil Service Commission, nor challenge its statutory power to modify the sentence. Rather, it attacks the action of the Commission as an abuse of its statutory authority, requiring reversal by this court.
The facts are set out in the comprehensive findings and discussion of the testimony prefacing the conclusion and order of the Civil Service Commission. Since the Commission found Donohue guilty as charged and he does not cross-claim, we ordinarily would not fully detail the facts. However, their exposition is necessary to establish the background
against which the Commission action is to be appraised.
Donohue was sick with a cold on the morning of May 24, 1956. Before leaving his home to assume his regularly assigned 8 A.M. to 4 P.M. round of duty he took two aspirins, some ammoniated cough syrup, and an ounce of whiskey with lemon and water. His morning police car patrol passed without event; there is no evidence of intoxication or dereliction of duty during that period. During the noon-hour he returned home for lunch, which consisted of a salad and coffee. Since he had no more of the cough syrup he took a teaspoon of elixir terpin hydrate. The doctor who later examined Donohue testified on behalf of the borough that this cough medicine had an alcoholic content of 40 to 42%. Donohue took the medicine bottle, with less than a teaspoonful left, with him when he returned to duty at 1 P.M., and consumed the elixir during the early afternoon. He testified that he reported for duty by making two radio calls to headquarters from his car at that time, which calls were not acknowledged.
The events following lunch were the subject of conflicting testimony. Acting Chief Bloor testified he tried continually to reach Donohue by radio call between 1:55 and 2:40 P.M. -- he and the desk sergeant said there were 22 calls made -- but without success. He finally got a response at 2:40, but Donohue failed to appear at headquarters. Bloor then went out to look for Donohue and found his radio patrol car parked at a gasoline station. He went into the men's room and found Donohue sitting there, holding his head and in an intoxicated state. He smelled alcohol on Donohue's breath and asked if he had been drinking; receiving a profane and inconclusive reply he ordered Donohue to return to headquarters with the patrol car. Donohue did so without mishap and, according to Bloor, upon arrival let loose a barrage of obscene and profane language and name-calling when asked what was the matter with him.
Bloor then called in an osteopathic physician to examine Donohue. The Commission described the examination as
brief; we would characterize it as cursory. The doctor found Donohue's blood pressure slightly higher than normal, the pulse high normal, the pupillary reflexes slow and sluggish and the respiration count high. Donohue could walk a straight line, but his body swayed a few times. His face was flushed and his speech slurred and abusive. There was a strong odor of alcohol. The doctor did not test Donohue by having him shut his eyes and touch index finger to nose, or fingertips to fingertips. He did not inquire as to whether he was sick or had taken medication. There was no urine test, and Donohue's demand for a blood test was ignored. The doctor concluded that Donohue was under the influence of liquor and it was not safe for him to drive in that condition. Later in his testimony he said Donohue was "slightly intoxicated"; he was "intoxicated, but very mildly." Asked on cross-examination if he did not say after the examination that Donohue was fit for duty, his answer was, "I don't recall that I did." (On depositions he was asked whether he had not told a third person that Donohue was not intoxicated; his reply was, "In talking of the average layman's term of what he considers intoxication, I said no.")
Following the doctor's examination Acting Chief Bloor suspended Donohue from duty for five days "for failing to answer radio and also for drinking while on duty."
The desk sergeant and borough clerk, both of whom were at police headquarters when Donohue reported in, substantiated Bloor's testimony that Donohue used obscene and indecent language toward him. Both were of the opinion that he was under the influence of intoxicating liquor.
Donohue testified that after reporting back to patrol duty at 1 P.M. and receiving no acknowledgment of his two calls to headquarters, he continued his patrol and received no signal until 2:30, when Bloor told him to report to headquarters to deliver a letter for him. Bloor had made no mention of having called him. Donohue said he got a coughing spasm on his way to headquarters and began to gag. He went to the men's room of a nearby service
station, where he was sick at his stomach. As he came out he met Bloor and told him of his illness. According to Donohue, Bloor called him a foul name, accused him of being drunk, and directed that he get into his radio car and follow him to headquarters. Upon arrival there Bloor told him he was suspended for five days for drinking while on duty. Donohue replied that it was a "bum rap" and that Bloor knew he hadn't been drinking on duty, but was sick. Bloor then said he was going to call a doctor to examine him, and when the doctor came in Bloor pointed to Donohue and said he was drunk. After the examination, according to Donohue, the doctor turned to Bloor and said, "This man is perfectly fit for duty." Bloor insisted he was drunk and suspended him for five days, at which point, Donohue says, "I blew my top. We got into a terrific argument." He said Bloor cursed at him; when asked whether he cursed back, he replied, "I probably did. I don't remember. I was very angry." Donohue testified he told Bloor that his job had been in jeopardy since May 10 preceding; he said, "You have been gunning for me ever since. Proof of that is that you tried to suspend me yesterday. * * * You changed your mind. Today you are making it stick." He demanded a blood examination, and it was refused.
Donohue claimed there was bad feeling between Bloor and himself, resulting from his having issued a traffic summons for speeding to the borough police commissioner on May 10 preceding. He described how Bloor and the commissioner had importuned him to withdraw the ticket; they had put him under considerable pressure to do so, but he refused. He persisted in that refusal despite the commissioner's threat that "Some day you are going to be very sorry that this happened" -- ever since which time, according to Donohue, the acting chief had been hostile toward him. To further substantiate ...