For modification -- Chief Justice Hughes, Justices Mountain, Sullivan, Clifford and Schreiber and Judge Conford. Concurring and dissenting -- Justice Pashman. The opinion of the Court was delivered by Sullivan, J. Pashman, J. (concurring in part and dissenting in part).
This is a companion case to Jansco v. Waldron, 70 N.J. 320 (1976), also decided this day, and involves the same basic question decided therein, whether the governing body of a municipality, in creating and establishing a police department and force under the authority of N.J.S.A. 40:47-1, now 40A:14-118, must itself and by ordinance, adopt rules and regulations for the government of the department and force and for the discipline of its members, or whether this statutory power may be subdelegated to a subordinate body or official.
The Police Department of the Town of Nutley exists and is regulated and controlled by Ordinance #357 adopted on August 7, 1928 pursuant to N.J.S.A. 40:47-1, now N.J.S.A. 40A:14-118. The ordinance, inter alia, vests
in the Director of Public Safety full executive, judicial and administrative control of the department including the power to enforce the rules and regulations provided by the ordinance as well as the power to promulgate such administrative rules as, in his judgment, may from time to time be proper for the efficient management of the department. Under the ordinance the Chief of Police is given the power to promulgate orders to the police force not inconsistent with any of the orders or rules established in the ordinance or any administrative orders made by the Director pursuant to the enabling ordinance.
Article II of the ordinance contains general rules applicable to the members of the police force, one of which, Section 32, provides:
Article IV of the ordinance, which deals with Control, Discipline and Removal from Office, lists in Section 3 the disciplinary charges to be heard before the Director of Public Safety. Included therein is the following:
(7) Neglect in paying just debts, contracted while a member of the force.
On February 6, 1968 the governing body of the Town of Nutley adopted by resolution a set of Rules and Regulations governing the Police Department of Nutley which had been compiled by the Chief of Police under the supervision of the Director of Public Safety. These rules include Rule of General Conduct No. 3:2.1:
Duty Requirement. Police officers shall be always subject to duty even when periodically relieved from regularly scheduled duty.
and Disciplinary Rule No. 6:16:
Department members shall neither neglect nor refuse to pay their just debts.
Plaintiff is a Nutley police officer. On June 15, 1973 the defendant Police Chief of the Town of Nutley issued an order requiring all police officers to "have a telephone at their residency in order that they are accessible to the call of the Department, and in cases of dire emergency." The order referred to Rule 3:2.1, supra. Plaintiff, who did not have a telephone in his home, refused to comply with the order although notified by the Director of Public Safety that unless he did so charges would be preferred against him.
On July 19, 1973 a departmental complaint was filed charging plaintiff with violating the order of June 15, 1973, as well as disobeying direct orders from the Director of Public Safety and the Deputy Police Chief that plaintiff secure a telephone. The complaint also charged plaintiff with a violation of Nutley Police Department Rules and Regulations, Chapter VI, Rule 6.16, Payment of Just Debts, in that plaintiff owed a debt of $199.41 to Janette Shop. A notice fixing a time and place for hearing accompanied the complaint.
Upon being served with the charges and notice of hearing plaintiff filed the instant suit seeking basically to have the charges against him dismissed on the ground that the June 15, 1973 order and Rule 6.16 had no legal standing, not having been provided for by ordinance. The trial court ruled that the Legislature, in granting the power to the governing body of a municipality under N.J.S.A. 40:47-1, to establish, maintain, regulate and control a police department and force and to prescribe and establish rules and regulations for the government and discipline thereof, "expressly proclaimed" that such power be exercised through the ...