Mayor of New Brunswick v. Fitzgerald

48 N.J.L. 457 | N.J. | 1886

Lead Opinion

Beasley, Chief Justice.

By an ordinance enacted by the mayor and common council of the city of New Brunswick,, constituting a police department, it was provided that such officers should be appointed by the common council and should hold “ their respective offices during good behavior.” Subsequently, on the 23d of May, 1870, another ordinance was-passed, repealing, in express terms, the foregoing regulation, of the tenure of these officials, and declaring, to use its own language, “ that every person who shall be appointed to any office under the provisions of the said ordinance shall continue-in office until the office for which he shall have been appointed shall have been declared vacant, or until another person shall be appointed to succeed him and shall enter upon the duties-of his office.”

On the 6th day of July, 1885, the common council of New Brunswick passed a resolution declaring that the offices of chief of police aud of the policemen be declared vacant, and proceeded to appoint others in their stead. This removal was-not for cause, but was brought about by the mere volition of the council.

The question to be decided is whether such act be legal.

The solution of the inquiry depends altogether on the construction, to be given to the statute approved March 25th,. 1885, entitled “An act respecting police departments of cities, and regulating the tenure and terms of office of officers and men employed in said departments.” That this statute, if it has legal efficacy, did prohibit the act of the city council im question is- too plain to admit of discussion.

The contention is that this law is unconstitutional, and it is-challenged, in this respect, on two grounds, it being urged, in the first place, that it rests on an incomplete classification, in-as much as its subject is the regulation of police departments, and it is made applicable to cities only, although towns and boroughs are similarly circumstanced, having police departments identically conditioned.

In the Supreme Court, so far as this point was concerned, the subject was disposed of on the ground that this classification had been so repeatedly recognized in judicial decisions and in acts of legislation as not to be open to further discussion, but that it was to be treated as res adjudicóla. In that view this court entirely concurs.

But in the second place it was insisted that the statute referred to was special, and therefore unconstitutional, in this respect: that it created differences in the terms of office of the police, and in the power to remove them, in the various cities of the state.

It is plain that as these departments of police are common to all cities, any law that affects to regulate them must, by force of our legal system, be a general one. A particular legislative plan, prescribing the official terms of such functionaries or the mode of their supersedure, whether such results be effected by the modification of existing regulations or by the introduction of new ones, applicable to certain cities only, would be clearly illegitimate. The reason of this is that such a law would be based on an imperfect classification, as it has to do with a subject matter that is- common to all cities, while its operation is confined to a few of them.

And in my opinion the provision contained in the first clause of section 1 of this act now under consideration falls under the condemnation of this principle. That regulation is in these words, viz.: “ That in the several cities of the state, the officers and men employed by municipal authority in the police department of any city shall severally hold their respective offices and continue in their respective employment as such municipal officers and employees during good behavior, efficiency and residence in such city, except where, by statute, the term of office of any such officer and employee is determined and fixed, and does not depend upon .the pleasure of any municipal officer, officers or board authorized to make appointment or employment in said departments.”

It will be observed that by this passage variant tenures of office in this branch of the public service are established in the different cities. In some, where the tenure of .office has been created for a fixed period by a city ordinance, the tenure is converted into an indefinite holding—that is, during the good behavior of the incumbent; and in others, where the same fixed term of office exists, under similar conditions, by force of a statute, such office-holders are not affected by this legislative regulation, but retain their offices only for the period limited at their appointment. In other words, this clause, by force of the regulation that it introduces, and the exception by which such regulation is limited, has the effect of giving to some cities a police force the members of which would hold office quam bene se gesserint, and to other cities a body of policemen who would continue in office only during a fixed period. Such a law is obviously special, as neither of its establishments appertains to all the cities of the state, its defect being that it proceeds on an imperfect classification.

But it is not conceived that the other provisions of this statute are liable to a similar impeachment, and it is such latter provisions that are applicable to the present case.

The second clause of the section, part of which has been quoted above, is as follows, viz.: “ No person shall be removed from office or employment in the police department of any city, or from the police force of any city, for political reasons, or for any other cause than incapacity, misconduct, nonresidence or disobedience of just rules and regulations established or which may be established for the police force or police department of such city; provided, that any member of the police force of any city who shall be absent from duty, without just cause, for the term of five days, shall, at the expiration of said five days, cease to be a member of such police force.” And section 5 of the act reiterates this declaration, and prescribes the mode in which, for just cause, all removals from office shall be effected.

It will be noted, therefore, that this provision is general: it applies to this entire class of municipalities, and to every policeman, no matter what his tenure of office may be, and whether derived from statute or ordinance. The regulation is also complete and self-sustaining, being in no wise dependent on the preceding clause, and it is therefore severable and capable of separate enforcement. Its effect is this and nothing more: that hereafter no policeman in any city of the state can be removed from office except for misconduct, on cause shown and after trial. No reason is apparent why such an act is not constitutional, and, in a legal point of view, wholly unobjectionable.

The other objections taken in the brief of counsel have been duly considered, but being deemed plainly unsustainable, their discussion seems unnecessary.

The action of the common council, being in contravention of the prohibition of the statute above expounded, was properly nullified by the Supreme Court, and that judgment must be affirmed.

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Dissenting Opinion

The Chancellor

(dissenting.) By an ordinance of the city of New Brunswick, passed in 1870, it is provided that every person appointed under the provisions of the ordinance to establish and regulate the police department of the city shall continue in office until the office for which he shall have been appointed shall be declared vacant, or until another person shall be appointed to succeed him and shall enter upon the duties of his office. On the 6th of July, 1885, the common council, by the vote of a majority, declared the offices of chief of police and of patrolmen of the city vacant, and then, by like vote, appointed other persons to the offices thus declared vacant.' 'The validity of their action in these matters was called in question by proceedings in certiorari in the Supreme Court, which resulted in a judgment declaring the action invalid. The ground upon which the judgment was based is that the common council was, by the act entitled “An act respecting police departments of cities, and regulating the tenure and terms of officers and men employed in said departments,” which was approved March 25th, 1885, (Pamph. L., p. 163,) deprived of the power which it, up to that time, had, so to remove those officers. The removals were made' merely at the will of the majority of the members of the common council, and not upon any charges against the officers. The writ of error brings before this court the question of the-constitutionality of the law just referred to. The first section of the act provides “ that in the several cities of the state, the officers and men employed by municipal authority in the police department of any city, shall severally hold their respective offices and continue in their respective employment as such municipal officers and employees during good behavior, efficiency and residence in such city, except where, by statute, the .term of office of any such officer and employee is determined and fixed, and does not depend upon the pleasure of any municipal officer, officers or board authorized to make appointment or employment in said departments; and no person shall be removed from office or employment in tho police department of any city, or from the police force of any city, for political reasons, or for any other cause than incapacity, misconduct, nonresidence or disobedience of just rules and regulations established, or which may be established, for the police force or police department of such city; provided, that any member of the police force of any city who shall be absent from duty,' without just cause, for the term of five days, shall, at the expiration of said five days, cease to be a member of such police force.” The second section ¡provides that the municipal authorities of each city, whose duty it is or may be to provide for, regulate or manage a police department in the city, shall make rules and regulations respecting the department. The third and fourth prescribe the qualifications of policemen in the cities. The fifth provides that no person, whether officer or employee, in the police department of any city, shall be removed from office or employment therein, except for just cause, as provided in the first section, and then only after charge and trial, as provided for in the fifth section.

It will have been seen that the law is, by its terms, confined in its operation to the policemen of cities. Inasmuch as many municipalities, such as towns and boroughs, also employ policemen, and have what may be called police departments, the act cannot be held to be general, seeing that it deals with only part of the body of official persons known as policemen, unless it be upon the assumption that policemen in cities, because of .their greater number and different situation, have, as bodies, different requirements from those of policemen in towns and boroughs, which requirements are sufficiently marked to constitute policemen in cities a proper class for separate législation.

But apart from this objection, it seems to me quite clear that the act is in contravention of that provision of the constitution which prohibits the passing of private, local or special laws regulating the internal affairs of towns and counties. That by the first clause of its first section it affects the internal affairs of certain cities only, is obvious. Such are the terms of that clause. It applies, not to all cities indiscriminately, but only to those in which the terms of office of policemen depend upon the pleasure of the appointing power. The object of the act is manifestly to deprive the appointing-power in those cities of the power -which they possessed, at the passage of the act, of removing policemen at will. That this is a regulation of the internal affairs of those cities, is too obvious for remark.

But it is argued that the cities in which the policemen hold office at will constitute, by reason of the peculiarity of such tenure of office, a class for legislation, so far as the subject of the tenure of office of such policemen is concerned. A similar proposition was rejected in this court, in Hammer v. State, 15 Vroom 667. In that case this court condemned as unconstitutional a law which provided that in any city in this state where a board of assessment and revision of taxes existed at the passage of the act, the board should thereafter consist of four members, resident electors of the city, to be chosen in a certain way designated in the act, and that in all cities where boards of assessment and revision of taxes existed at the passage of the act, the terms of office of the members of the board should terminate upon the appointment of their successors, who, it was provided by the act, should be appointed immediately after the passage of the act. It was held that the law was in contravention of the constitutional prohibition above mentioned. The law, in fact, originally, because of a provision limiting its operation to cities of a certain population, applied to but one city, but it was general in its terms. It was subsequently so amended, by striking out that restriction, that it extended to three cities. It was held that the fact that in those cities taxes were assessed by the machinery of a board of assessment and revision did not constitute them a class for separate legislation; and although the legislation in question was aimed at the boards and sought, not to abolish them, but merely to reduce the number of members, to change the mode of appointment and extend the term of office, it was adjudged to be unconstitutional. The act dealt with the tenure of office alone. It was said, in that case, that to justify separate legislation for towns and counties there must be something in ’the subject matter of the enactment to call forth and necessitate such legislation, and that there must be a substantial difference to warrant it. There would seem to be much more reason for sustaining that legislation than for sustaining the law now under consideration. There the legislation was in reference to the boards, and it reached all boards of the same character. Here the legislation is in reference, not. to all policemen in cities, but only to those who do not hold office for terms fixed by statute—part, only, of a class. If the fact that certain cities have boards of assessment and revision of taxes, while others have not, does not constitute the former a class for legislative interference with their internal affairs, even in reference to such boards, how can it be said that the fact that in certain cities their policemen hold office at will, instead of for a fixed term, as the policemen in other cities do, constitutes the former cities a class for separate legislation ? If a law should provide that in all cities in which the policemen hold their offices at will the taxes shall be assessed, by a board of assessment to be appointed by the mayor, it would at once be said that such legislation cannot be maintained, because it is based upon false classification.

The fact that some policemen hold office at will no more constitutes them a class for separate legislation than would the circumstance that they receive their pay monthly while other policemen receive theirs quarter-yearly. "While policemen in general constitute a class for legislation, the differences in the tenure of their office do not create legitimate classes for separate legislation. The legislature cannot say to one city, “Inasmuch as your policemen hold their offices for terms fixed by statute, we will deal with them as a class, and change the tenure of their office, and provide that they shall hold only at the will of the common council,” and to another city, “ Inasmuch as your policemen hold at will, we will, dealing with them as a class, provide that they shall hold their offices for life.” In either case the legislation would be a special interference with the internal affairs of the city. And yet that is precisely what is done by the law in question. The legislature may say that all policemen, (and perhaps all policemen in cities,) shall hold their offices by the same or like tenure. If the distinction in tenure of office constitutes legitimate ground for separate legislation in reference to the police force in cities, it would do so, also, in reference to other municipal officers. The difference in the tenure of office of mayors and aldermen and other city officials would, upon the same reasoning, constitute classes for1 separate legislation in respect to such offices. The only difference between such legislation and the old method of special legislation would be that under the old system the legislation might have been directed to the individual case, while under the new it must be directed to the so-called class. In the opinion of the Supreme Court in this case, the classification was held to be a false one, but it was held that part of the first section, (the first clause,) might be disregarded, and the rest be sustained as constitutional, on the ground that it provides that no person shall be removed from office or employment in the police department of any .city for political reasons, or for any other cause than incapacity, misconduct, Ac., and therefore is a general provision in regard to removals. But inasmuch as the effect of that provision is to declare that in cities where the policemen hold office at will they shall not be removed without cause, it is difficult to see why the provision is not ■clearly special legislation interfering with the internal affairs of the cities in which the policemen hold office at will. The legislature cannot constitutionally do by indirection that which it cannot constitutionally do directly. A law which should ■declare that in every city whose charter provides that the mayor shall hold office for one year only, (in some cities the mayor holds for a longer term,) the mayor shall not be removed from office except for cause, would be as clearly a ■special law as if it should provide that the term of office of the mayor should be extended so that the incumbent should hold during good behavior. The legislature, by the act ■under consideration, has substantially provided that such policemen as before the passage of the act held office at will •shall hold during good behavior, efficiency, and residence in the city, but that those who hold for terms fixed by statute shall still hold for such terms and no longer; for the legislation affects, and is designed to affect, the former only. Nor ■can the legislation be sustained upon the ground that, it was necessary or proper, in order to secure uniformity of tenure ■of policemen; for it does not do that, and was not intended to effect that end. Instead of the difference of tenure which ■existed before the act was passed, which was .that some policemen held at will while others held for fixed terms, the difference now is that some hold for fixed terms while others hold during good behavior, Ac. It is as important to guard against violation of the constitutional prohibition, when •effected by means of legislative provisions which, though seemingly of a general character, are, in fact, special in their operation, as it is to guard against false and illusory classifications to the same end. Special legislation upon forbidden subjects, effected by means of ingeniously devised prohibitory provisions, is obviously just as objectionable, under the constitution, as direct and open legislation to the same end would be. The effect and operation of the legislation must be regarded in testing such laws; the form is a matter of minor consideration. If the legislature may, by either method, effect the forbidden purpose, the constitutional prohibition will be of but little avail. This law is based upon a false classification, in order to effect an illegitimate purpose. It should be condemned in every respect in which it violates the constitutional prohibition, whatever may be the means which it provides to accomplish the object.

I am of opinion that the judgment of the Supreme Court should be reversed.

For affirmance—The Chief Justice, Dixon, Knapp, Magie, Parker, Yan Syckel, Cole—7.

For reversal—The Chancellor, Brown, Clement, McGregor, Paterson, Whitaker—6.