Opinion
Submitted October 26, 1934 —
Decided January 10, 1935.
On prosecutor's appeal from a judgment of the Supreme Court dismissing a writ of certiorari. The opinion of that court is reported in 113 N.J.L. 215; 174 Atl. Rep. 199.
For the appellant, Charles E. McCraith, Jr.
For the respondent, Donald M. Waesche.
The Supreme Court found as a fact and on proper evidence, that the repeal of the 1914 fire ordinance was in good faith and in the interest of economy. That finding is of course controlling on us. Such repeal of itself worked the abolition of the office of fire chief, previously held by prosecutor. Such being the case, the validity and effect of the new ordinance No. 209 and the resolution of October 16th, 1933, become immaterial for present purposes, unless indeed the office of fire chief was thereby revived under another name, as in Nickerson v. Wildwood, 111 N.J.L. 169.
The Supreme Court did not so consider, so far as we can gather from the opinion. But even assuming the fact, the remedy, as pointed out in the case just cited, is by quo warranto.
Appellant urges that even if he is legally demoted as fire chief, he remains a fireman and is entitled to serve as such; relying on the Supreme Court case of McCann v. New Brunswick, 73 N.J.L. 161. To this there seem to be two answers. The first is that the attack is on two ordinances and a resolution, in none of which does any specific action dismissing prosecutor as a fireman, appear. The second is that if prosecutor seeks reinstatement as a fireman, his remedy is by mandamus, as exhibited in the McCann case just cited.
The judgment of the Supreme Court is affirmed.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, PARKER, LLOYD, CASE, BODINE, DONGES, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, JJ. 12.
For reversal — None.