
    CHARLES W. BOWLBY, PROSECUTOR, v. THE MAYOR AND CITY COUNCIL OF DOVER, AND THE MAYOR, RECORDER, ALDERMEN AND COMMON COUNCILMEN OF DOVER.
    
    
      
       This opinion not having been filed' until November 25th, 1902, was then inadvertently placed by the clerk with the opinions of November Term, 1902. My attention was called to it too late to print it with the opinion of the court, which will be found’ at p. 97 ante. Rep.
    
   Pitnuy, J.

(dissenting). This case was before the court on a former occasion, when only the officials of the so-called “city government” of Dover were parties defendant. It was then decided that the writ of certiorari should be dismissed because the officials of the “town government” were necessary parties, without whose presence in court no' judgment against the municipality should be pronounced. Bowlby v. Dover, 35 Vroom 184. Since that decision, and before entry of an order of dismissal, the proceedings have been amended by joining the mayor, recorder, alderman and common councilmen of Dover, and that corporation, which is lawfully in control of the municipal government of the town, is now in court as a defendant whose rights are sought to be affected by.the result of the proceedings.

The complaint of the prosecutor is that he was removed from the office of chief of police of the city of Dover on February 14th, 1898, by a resolution of the city council passed without charges preferred, and without affording to the prosecutor an opportunity to be heard in his defence. I concur in the view of the majority of the court that the prosecutor was in fact removed in defiance of the plain terms of the act under which the then existing de facto government of Dover was organized.' Pamph. L. 1895, pp. 506, 517, 525, 532, §§ 24, 42, 53. But I dissent from the conclusions that are deduced from that fact.

Dover was constituted and declared to be a town corporate, by a special act of the legislature passed in 1869. Pamph. L., 1161, § 1. The municipal government thus created remained in operation continuously until the people voted in the year 1896 to adopt the provisions of the act of 1895. By section 7 of the charter of 1869 it is enacted that the common council may appoint certain subordinate officers, among others a “town marshal,” and that “all the officers of the said corporation, except those elected by the people, shall hold their offices during the pleasure of the common council.” By section 13, plaeitum 19, it is enacted that the common council ma}-, by ordinance, establish a day and night police, and define their duties. So far as appears, no ordinance was ever passed for this purpose under the authority of the act of 1869, no such office as chief .of police was created, and the “town marshal” was at the head of the local constabulary. In my opinion it was not within the power of the common council, in the face of section 7 of the act of 1869, to confer upon any subordinate officer a right to a term of office extending beyond the pleasure of the council.

The Policemen’s Tenure of Office act, approved March 25th, 1885 (Pamph. L., p. 163; Gen. Stat., p. 1534), is limited by its title so as to apply to cities only, and cannot constitutionally be extended to other forms of municipality. Day v. Morristown, 33 Vroom 571; S. C., 34 Id. 353; Jones v. Morristown, 37 Id. 488; Walling v. Deckertown, 35 Id. 203; Hermann v. Guttenberg, 34 Id. 616. Among the supplements to the act of 1885 just mentioned is one (Pamph. L. 1895, p. 121) that prohibits removal without cause of a policeman “in all incorporated towns of over ten thousand inhabitants in counties of the first class;” and another supplement (Pamph. L. 1897, p. 128) prohibits such removal without cause in “all towns, boroughs and townships in counties of the first class.” Dover has less than ten thousand inhabitants, and it is situate in a county not of the'first class. Therefore the constitutional validity of this method of classifying municipalities, with reference to their location within a populous county, would not require discussion' in this case, even could we ignore the limitation resulting from the mention of cities only in the title of the principal act.

The act of March 20th, 1895, for. creating a police department in second class cities (Pamph. L., p. 369; Gen. Stat., p. 1548), and the act of March 8th, 1899, relating to police departments in cities and regulating the tenure of office, &c. (Pamph. L., p. 26), are likewise limited so as to apply to cities only, and cannot be extended to embrace incorporated towns such as Dover.

Up to- this point, therefore, we find no such office created or recognized by law as “chief of police” of Dover; nor any fixed term for such office.

In the spring of the year 1896 the people of Dover adopted the form of government prescribed by the act of 1895 first above referred to. By the terms of that act (Pamph. L., p. .506, §§ 9, 10, 42) the chief of police was a statutory officer, with prescribed functions, having an official term of three years, and subject to removal only for cause. By section 53 of the same act, the city council was empowered by ordinance to establish a day and night police, and by section 24, as well as by the other sections just referred to, the power of the city council to remove from office was defined.

The case shows that the city council which took office under this act passed an ordinance to establish a day and night police, and appointed the prosecutor as chief of police. The ordinance prescribed no term of office, but, under the act of 1895, the prosecutor claims to have become entitled to a term of three years. His removal by the city council, of which he now complains, took place before the expiration of that term.

But it has been authoritatively decided that the act of 1895 is unconstitutional and void, and that it conferred no lawful authority upon the city council. Some time after the prosecutor was deposed by the city council, that council was itself ousted from office in quo warranto proceedings at the instance of the attorney-general, because of the nullity of the act of 1895. Attorney-General v. Dover, 33 Vroom 40; S. C. on error, Id. 647.

It is thus conclusively established, not only that the mayor and city council were usurpers, but that in so far as they as-sinned to exercise functions conferred only by the act of 1895, they were acting without color of right; for an unconstitutional law confers rights upon nobody. Conceding, therefore, that the mayor and city council were officers de facto, in the sense and to .the extent that they constituted the actual governing body of the town of Dover, 3ret it seems to me. plain that their powers must be confined within the limits of such constitutional legislation as then existed, providing for the government of that political subdivision of which they were in control. Whatever the charter of 1869 authorized the governing body of the town to do, the usurping mayor and council could do for the time being, and nothing more. They could not confer upon the prosecutor any right to a public office that had no existence outside of the pages of air unconstitutional law. In some instances officers de fado are permitted to confer upon others a de jure title to office, but, of course, this applies only where there exists a de jure office to be filled. _ Unless there be a de jure office there cannot be a de facto officer; much less can there be a de jure officer. These propositions are, I believe, now established beyond the possibility of further dispute. Mech. Pub. Off., §§ 315, 328; State v. Carroll (38 Conn. 449), 9 Am. Rep. 409; Norton v. Shelby County, 118 U. S. 425, 442; Flaucher v. Camden, 27 Vroom 244; Kirby v. State, 28 Id. 320. The cases of Erwin v. Jersey City, 31 Id. 141, and Brinkerhoff v. Jersey City, 35 Id. 225, related to offices that had a lawful existence.

In Attorney-General v. Town of Dover, 33 Vroom 138, this court refused to grant a mandamus to require the officials of the town of Dover to exercise and discharge their duties under the charter of 1869, pending the determination of a writ of error that had been brought to review the decision of this court in the quo warranto case. The ground of the refusal was that the city officials constituted a de facto government until actually ousted by the attorney-general in the quo warranto proceedings, and that as the execution of the judgment 'of ouster had been sta3red by the writ of error, the de facto government must in the meantime prevail and be respected. This decision, however, did not at all define what the powers of the de fado government should be, or lend any validity to the unconstitutional law beyond its effect in giving color of office to the de facto government. I do not understand that decision as in anywise countenancing the notion that a de facto government can derive powers from an unconstitutional law.

If my reasoning thus far is correct, it follows as a necessary consequence that there was no such office as chief of police of Dover, and certainly no lawful term for such an office extending beyond the pleasure of the council. It follows likewise that the prosecutor had no legal right to a continued tenure of the office. Therefore the action of the city council in deposing him worked no legal wrong, and it is a matter of entire indifference whether he was deposed for cause or without cause.

For these reasons I think the prosecutor is not entitled to draw the lawful municipal government of the town of Dover into any controversy respecting transactions had between him and the former de fado government; those transactions having had relation merely to a fictitious title to a fictitious office.

The resolution removing him from office cannot affect his right to be paid for his services up to the time of his removal; beyond that time he is not entitled to be paid. Erwin v. Jersey City 31 Vroom 141.

If the present writ of certiorari and the matters returned therewith have any claim to the consideration of this court, it must be on the ground that our determination setting aside the proceedings under review will have some effect in changing tire rights of the parties; ox rather in restoring the prosecutor to some rights of which he has been unlawfully deprived. Being convinced that he never had any rights in the premises of which he could be deprived, I think the writ of certiorari should be dismissed.  