State ex rel. Gutheil v. Nelson

The opinion o£ the court was delivered by Gummere, Chief Justice. The following are the material facts set out in the pleadings in this case: The government of the police force of the city of Hoboken is vested in the board of police commissioners of that city, under the provisions of the municipal charter; and that board has power to make such rules and regulations as it may deem proper for the regulation of the police department. In the exercise of that power the board adopted a manual of rules and regulations in which it was provided, among other things, that the police force should consist of “a chief of police, captains, a detective sergeant, sergeants, roundsmen, and such detectives, patrolmen, vandrivers and chancemen” as the board should appoint; that there should be two police precincts in the city; that the force in each precinct should form a company; and that the officers of each company should consist of one captain, three sergeants, three roundsmen, together with the necessary number of patrolmen and detectives. This manual was adopted in January, 1903, and under it Robert H. Bell and John Flattery were appointed captains, Bell being assigned by the chief of police to duty in the first precinct, and Flattery in the second. In August, lOOt, by a resolution of the board the respondent, Nelson, was appointed a captain of the police department, and was assigned to take command of the detective bureau which was then, or had been theretofore, created. On the 11th of November, 1911, Captain Bell died while in office. On the 16th of that month the board removed Captain Flattery from his office, and immediately thereafter appointed the present relator, then detective sergeant, Gutlieil, and Sergeant Foley, captains to fill the vacancies thus created. The chief of police thereupon assigned the relator to duty as captain of the first precinct, and Foley to duty as captain of the second. [3] Immediately after his removal Captain Flattery began proceedings in this court to test the validitjr of that action by the hoard; and on the; 3d of February, 1912, we adjudged such removal unwarranted, illegal and void, and directed his restoration to his office. Twelve da_vs later the board passed a resolution reducing Captains Guthoil and Foley to their original positions, restoring Captain Flattery to Ms office, and directing the chief of police to detail him to Ms original command, and to assign Nelson, the respondent, to the captaincy of the first precinct. The relator, by this proceeding, seeks to obtain an adjudication of this court that Nelson, the respondent, usurps the office which he now holds, and that he (the relator) is the legal incumbent thereof, and entitled to the command of the first precinct. The first ground upon which the relator rests Ms claim is that under the provisions of the manual of rules and regulations of the board above recited, the appointment of the respondent as captain of police in July, 1907, was ultra vires the board, and void; the argument being that because there were only two police precincts in the city, there could be only two captains legally appointed, and, there being already at the time of Nelson’s appointment a captain in charge of each of the two precincts, that appointment violated the provision of the manual. But this, we think, is due to a misconception of the language of that document. The provision thereof is that tlie police force shall consist of a chief of police, captains, detective sergeants, &c., &c. There is no limitation as to the number of captains, or of officers of a lower grade, that may he appointed. How many of each class there shall be rests in the sound discretion of the hoard. If the exigencies of the public service at any time should require the appointment of a caplain of police whose duty should be other than the command of a precinct, it is within the power of the board, under its oval manual of ralos and regulations, to make such appointment. The action of tlie hoard, therefore, in creating the respondent one of the captains of the police force, and [4] assigning him to the command of the detective burean, was not taken in disregard of its own manual. It is further contended that the board was without power to remove the relator from the command of the first precinct, after he had once been legally appointed thereto. The line of duty to he assigned to a particular appointee is a matter to be determined from time to time by the board, in the public interest: subject, of course, to such statutory limitations as may exist. The fact that a particular captain has once been assigned to the performance of a particular line of duty, for instance, to the command of a particular precinct, vests in him no right to continue in the performance of that specific duty contrary to the will of the board. He holds the assignment subject to he transferred from one line of duty to another, required to be performed by an officer of his rank, whenever the board, in its good judgment, shall determine it to be for the public interest. The relator, Gutheil, having been appointed captain, and assigned to duty as commander of the first precinct, was entitled to hold that assignment only so long as the public interests, in the opinion of the board, were best subserved thereby. And this is equally true noth relation to the assignment of Nelson to duly as head of the detective service. The removal, therefore, by the hoard, of the relator from his command, and its assignment of the respondent to that command, was a valid exercise of the power conferred upon the board by the legislature. Whether the action of the board in reducing the relator from the rank of captain to that of detective sergeant is legally defensible (a matter discussed in the briefs of counsel), is not involved in the‘■determination of the present proceeding, which stands or falls upon the validity of the appointment of Nelson as captain, and his assignment to the command of the first precinct. That appointment, and the subsequent assignment, being within the power of the hoard, and constituting the defence set up by the respondent, the demurrer to the pleas must he overruled. The respondent Is entitled to judgment on the demurrer.