State v. City of Cape May

50 N.J.L. 558 | N.J. | 1888

The opinion of the court was delivered by

Scudder, J.

The legality of the discharge of the prosecutor by the resolutions of the city council is presented by the record in this case. He was employed since 1884 by municipal authority in the police department of the city of Cape May, and after the enactment of the statute of March 25th, 1885 {Pamph. L., p. 163), regulating the tenure of terms of office of officers and men employed in the police department of cities, could only be discharged for such cause as is named in that statute. He could not be removed without the assignment of any cause, as was done in this case under the first resolution. The second resolution was passed after the act of February 23d, 1886, and, it is claimed, that by it authority was given to discharge at the pleasure of the city council, under section 24 of the charter. The act of February 23d, 1886, amends section 1 of the act of March 25th, 1885, in two particulars. It adds to the general description of cities of the state, the further term “ whether the police departments are under the control of commissioners or otherwise ; ” and a second proviso, at the end of the section, “ that this act shall not apply in or to cities commonly known as seaside and summer resorts.”

This latter proviso or exception, it is argued, restored to the city council its former right to discharge. It is answered by the prosecutor that this exception is a local and special law regulating the internal affairs of cities, within the constitutional prohibition.

The taking of a class out of the general terms of the statute by exception, is obviously as obnoxious to the restraint put on legislation by the constitution as if a special act were passed giving it, and it only, the right of removal at pleasure. What kind of classification it must be that will make a law general, as distinguished from a local or special law regulating the internal affairs of cities, has been often considered in this court. This first section of the act of 1885 has been here construed in Fitzgerald v. New Brunswick, 18 Vroom 479, and in the same case in the Court of Errors and Appeals, 19 Vroom 457. The power of removal after policemen have been appointed to hold office during good behavior, as it is restricted by the act of February 23d, 1886, has recently-been determined in Cleary v. Trenton, ante p. 331. They cannot be removed by force of this statute for any reason other than the causes for removal specified in that act, and certainly cannot be discharged without any cause, unless in some way the council are freed from the restraining power of the act. Is, then, the exemption contained in this amended section constitutional in its classification of cities commonly known as seaside and summer resorts in its relation to the removal of members of the police department ? This can be answered by applying the test which was briefly put in Anderson v. Trenton, 13 Vroom 488. Is the basis of classification some peculiar feature to which the provisions of the law are naturally related? The peculiar feature in this case is that the cities are seaside resorts, the provisions of the law apply to policemen, and the point to be established is the relation between them that makes 'the classification natural- and appropriate. There is nothing in the mere location of these cities by the seaside that makes a more absolute control of their policemen necessary than in other cases ; nor are they less liable than others to be controlled by political reasons, or unworthy motives, which are prohibited in the act. The only peculiar feature that has been presented to us, or can be conceived, is, that in the summer months there is a large and constantly changing population composed of those who go to this city for business, health or recreation, and there is more need for protection and watchfulness at that season than in ordinary cities. It appears in this case that in the summer and early fall months, while this travel continued, the council employed usually six policemen, while at other parts of the year but three were engaged. It happens in other cities that there are large meetings, parades and crowds of people that are peaceful; and sometimes there are disturbances that threaten breaches of tire public peace, which make it necessary that, there should be temporary appointments of special officers, in addition to the regular police force, to preserve order. The difference between the two cases is, that here the crowd goes to the seaside at a stated time every year, while in other cases it happens occasionally. It does not appear that this is a sufficient distinction to base upon it the classification and exception to the general law appertaining to cities and their police department. If the necessity of appointing two. or three more policemen than would be otherwise needed is to be construed as a sufficient cause for annulling this statute, which was passed to correct the great abuses that were known to' exist in our cities before its enactment, in the removal of faithful and capable men from office, then there is little protection given by it. The exception, if allowed, will be followed by others, hardly distinguishable, and the evasion of this statute will soon be completed, or the legislature be driven to repeal it. I do not think that the cities excepted by this provision in the act of 1886 are so situated as to require a different law to regulate their police departments, and that the resolution passed by the éommon council to remove the prosecutor, without any of the causes shown within the limitations of the statute, has sufficient legal support. This resolution will be annulled, with costs.