Proceeding in lieu of prerogative writs.
This action was commenced by complaint in lieu of prerogative writs. The basic facts are not in dispute. Plaintiff De Stefano is a fireman in the City of Hoboken and a classified civil service municipal employee. He is a resident of the third ward in Hoboken and a citizen of the United States.
Plaintiff, early in 1967, announced his intention to run for councilman in the third ward. He was told by defendant Wilson, the Director of Law and Public Safety, that he had to take a leave of absence if he intended to become a candidate for such public office. Plaintiff refused to take a leave of absence and carried out his plan to run for councilman. The election was held on May 9, 1967 and plaintiff was not elected.
On April 11, 1967 plaintiff was served with notice of charges specifying that his conduct in running for office without taking a leave of absence violated Rules 128 and 132(f) of the fire department. The written charges filed against plaintiff by the chief of the fire department are as follows:
"1. That on March 2, 1967 Pasquale A. DeStefano received from Anthony J. Amoruso, City Clerk of the City of Hoboken, 50 petition forms and acceptance forms for Ward Councilman for the Municipal Election on May 9, 1967 for the Third Ward in the City of Hoboken.
2. That thereafter the said fireman, Pasquale De Stefano, was advised by the Director of the Department of Law, Division of
Public Safety, that under the Rules and Regulations of the Division of Public Safety, Bureau of Fire, that he would be required to take a leave of absence to take an active part in politics or political contests or engage in controversies concerning candidates or issues.
3. That on March 17, 1967, Pasquale A. De Stefano and May L. De Stefano filed the Affidavit of Candidate and Campaign Manager annexed to the petitions filed by the said Pasquale A. De Stefano as a candidate for Ward Councilman in the Third Ward for the Municipal Election to be held on May 9, 1967, in the City of Hoboken.
4. That on March 22, 1967 the said Pasquale De Stefano submitted the following slogan:
'The People's Dedicated Servant.'
5. That the said Pasquale De Stefano was present at the City Clerk's Office on April 6, 1967, at 3:00 P.M. which was the time and place for the drawing of position on the ballot for Ward Councilman on May 9, 1967.
6. As of the day and date hereof, the said Pasquale A. De Stefano still remains a Candidate for Councilman in the Third Ward."
Plaintiff was ordered to appear before defendant director on May 10, 1967, the day after election, to answer the charges. On that date he pleaded not guilty and questioned the constitutionality of Rule 128. The hearing was adjourned to May 26, 1967 in order to enable plaintiff to obtain the services of an attorney. Plaintiff thereafter filed a complaint in lieu of prerogative writs, and a temporary restraining order was obtained against the director ...