Conford, Freund and Sullivan. The opinion of the court was delivered by Freund, J.A.D.
Plaintiff Carmine J. Perrapato is the chief of police of the City of Garfield. On December 4, 1962 he was informed by defendant Gotthold Rose, mayor of Garfield, that he was suspended without pay for a period of five days, beginning December 4 and ending December 8, 1962. This action was predicated on the fact that the mayor had found an employee of the Garfield Water Department working at plaintiff's home during regular hours.
In answer to the mayor's request plaintiff had submitted a report stating that although the employee had done "odd jobs" for him in the past, such work had always been done on Saturdays or during hours when the employee was not working for the city, and that he (plaintiff) had not known that the employee had been working at his home on the day in question, nor had he nor any member of his family ever authorized this person to work there during times when he should have been working for the city. It was following receipt of this report that the Mayor notified plaintiff that he was suspended. Defendants concede that no formal charges were ever served upon plaintiff, and that he was not afforded a hearing.
Plaintiff brought an action in lieu of prerogative writs, demanding that his suspension be declared illegal and his salary for the suspension period be paid. The trial court granted his motion for summary judgment on the ground that the suspension violated N.J.S.A. 40:47-6, the relevant portions of which are as follows:
"No person, whether officer or employee in any such police department * * * shall be suspended, removed, fined or reduced from office or employment therein, except for just cause, as hereinbefore provided, and then only after written charge or charges of the cause or causes of complaint shall have been preferred against such officer or employee of said police department * * * signed by the person or persons making such charge or charges and filed in the office of the body, officer or officers having charge of the department in which the complaint arises and a copy thereof served upon such person within fifteen days after the filing thereof and after the charge or charges shall have been publicly examined by the appropriate board
or authority upon reasonable notice to the person charged, which examination shall be commenced not less than fifteen days nor more than thirty days after said copy of such charge or charges shall have been so served.
It is the intent of this section to give every person against whom a charge or charges for any cause may be preferred under this article a fair trial upon said charge or charges and every reasonable opportunity to make his defense if any he has or chooses to make and that in event of failure of compliance with any provision of this section, such charge or charges shall be dismissed."
Defendants contend that N.J.S.A. 40:47-6 is not applicable here because Garfield had adopted the Civil Service Act, N.J.S.A. 11:1-1 et seq. The mayor based his suspension of respondent upon Civil Service Rule 58, which reads as follows:
"Any appointing authority, and in his absence, the officer or employee having authority to act in his place, may suspend from duty without pay or with reduced pay, fine or demote any employee in his organization unit for any period not exceeding five days except when such officer or employee is charged with a criminal offense in which case such suspension may exceed five days, on account of inefficiency, incompetency, misconduct, negligence, insubordination, disloyalty or other sufficient cause. When any such suspension, fine or demotion is for a period greater than five days at any one time or when such suspensions, fines or demotions aggregate more than 15 days in any calendar year except when the employee is charged with a criminal offense the employee so suspended, fined or demoted shall have the same right of appeal as provided in the case of removals and the commission shall have the power to revoke or modify the action of appointing authorities as in its judgment is equitable and in the interests of the service."
Rule 58 implements N.J.S.A. 11:2A-1, which provides:
"No employee of the State, or of any county, municipality or school district of the State shall be suspended, fined, or demoted more than 3 times in any 1 year, nor for more than 5 days at any 1 time, nor for a period of greater than 15 days in the aggregate in any 1 year or discharged without the same right of appeal to the commission, which shall have the same power of revoking or modifying the action of such authority, as in the case of removal as provided in section 11:15-2 to 11:15-6 of the Revised Statutes."
The primary question before us, then, is whether N.J.S.A. 11:2A-1, which by negative implication ...