Bowlby v. City of Dover

[98] The opinion of the court was delivered by Fort, J. The proceedings of the common council in this case are without legal force. The prosecutor was appointed chief of police of the city of Dover May 17th, 1897, for three years. lie assumed his duties June 1st, 1897, and was in the performance of his official duties on February 14th, 1898, when the city council took the following actiop.: “The police committee reported having made an investigation of the doings of the chief of police, stating that it was their opinion that the present incumbent should be removed for the benefit and welfare of the city, recommending that such action be taken. The report was received and placed on file and the recommendation therein adopted.” There had been no trial of the chief upon formal charges upon which testimony was taken either by the common council or the police committee. The statute which authorized his removal for cause was not complied with. By the city charter of Dover, under which they were then assuming to act, he was entitled to have formal charges made upon which he should have a hearing, as also by the general statutes. Pamph. L. 1895, p. 506, §§ 24, 42; Gen. Stat., p. 1534. Where a statute limits the power of removal to cases in which cause is shown, that entitles the official to a hearing upon specific charges or causes for removal. Such charges must be substantiated by proof. If there be charges and proof the court will not review or overrule the municipal action. If there be charges but no proof, the action is void. Nor will the court weigh the evidence upon which the prosecutor was found guilty, if it formed a rational basis for the judgment against him. Ayers v. Newark, 20 Vroom 170; Ackerly v. Jersey City, 25 Id. 310; Cavanagh v. Police Commissioners., 30 Id. 412. Where a hearing is given by the statute, and the body charged with giving it has acted without it or refused it, the proceedings will be set aside. Dodd v. State Board of Health, 38 Vroom 463. Proceedings for the removal of officials under statutes en- . titling them to a hearing before they can be removed, are iu [99] dicial in character, and, in such cases, persons to be affected by such official action are entitled to be heard in relation thereto before action is taken. Stanley v. Passaic, 31 Vroom 392; Douglass v. Jersey City, 24 Id. 118. If there was any proof in the record of a hearing upon charges and of the taking of evidence, showing a basis for the removal of the prosecutor, we should not disturb the action taken in this ease; but not only were no proofs returned, but it was not even claimed that any were taken. The proceedings in this case were illegal and they are set aside, with costs.