The opinion
Beasley, Chief Justice.
By an ordinance enacted by the mayor and common council of the city of New Brunswick,, constituting a police department, it was provided that such officers should be appointed by the common council and should hold “ their respective offices during good behavior.” Subsequently, on the 23d of May, 1870, another ordinance was-passed, repealing, in express terms, the foregoing regulation, of the tenure of these officials, and declaring, to use its own language, “ that every person who shall be appointed to any office under the provisions of the said ordinance shall continue-in office until the office for which he shall have been appointed shall have been declared vacant, or until another person shall be appointed to succeed him and shall enter upon the duties-of his office.”
On the 6th day of July, 1885, the common council of New Brunswick passed a resolution declaring that the offices of chief of police aud of the policemen be declared vacant, and proceeded to appoint others in their stead. This removal was-not for cause, but was brought about by the mere volition of the council.
The question to be decided is whether such act be legal.
The solution of the inquiry depends altogether on the construction, to be given to the statute approved March 25th,. 1885, entitled “An act respecting police departments of cities, and regulating the tenure and terms of office of officers and men employed in said departments.” That this statute, if it has legal efficacy, did prohibit the act of the city council im question is- too plain to admit of discussion.
The contention is that this law is unconstitutional, and it is-challenged, in this respect, on two grounds, it being urged, in the first place, that it rests on an incomplete classification, in- *487 as much as its subject is the regulation of police departments, and it is made applicable to cities only, although towns and boroughs are similarly circumstanced, having police departments identically conditioned.
In the Supreme Court, so far as this point was concerned, the subject was disposed of on the ground that this classification had been so repeatedly recognized in judicial decisions and in acts of legislation as not to be open to further discussion, but that it was to be treated as res adjudicóla. In that view this court entirely concurs.
But in the second place it was insisted that the statute referred to was special, and therefore unconstitutional, in this respect: that it created differences in the terms of office of the police, and in the power to remove them, in the various cities of the state.
It is plain that as these departments of police are common to all cities, any law that affects to regulate them must, by force of our legal system, be a general one. A particular legislative plan, prescribing the official terms of such functionaries or the mode of their supersedure, whether such results be effected by the modification of existing regulations or by the introduction of new ones, applicable to certain cities only, would be clearly illegitimate. The reason of this is that such a law would be based on an imperfect classification, as it has to do with a subject matter that is- common to all cities, while its operation is confined to a few of them.
And in my opinion the provision contained in the first clause of section 1 of this act now under consideration falls under the condemnation of this principle. That regulation is in these words, viz.: “ That in the several cities of the state, the officers and men employed by municipal authority in the police department of any city shall severally hold their respective offices and continue in their respective employment as such municipal officers and employees during good behavior, efficiency and residence in such city, except where, by statute, the term of office of any such officer and employee is determined and fixed, and does not depend upon .the pleasure of *488 any municipal officer, officers or board authorized to make appointment or employment in said departments.”
It will be observed that by this passage variant tenures of office in this branch of the public service are established in the different cities. In some, where the tenure of .office has been created for a fixed period by a city ordinance, the tenure is converted into an indefinite holding—that is, during the good behavior of the incumbent; and in others, where the same fixed term of office exists, under similar conditions, by force of a statute, such office-holders are not affected by this legislative regulation, but retain their offices only for the period limited at their appointment. In other words, this clause, by force of the regulation that it introduces, and the exception by which such regulation is limited, has the effect of giving to some cities a police force the members of which would hold office quam bene se gesserint, and to other cities a body of policemen who would continue in office only during a fixed period. Such a law is obviously special, as neither of its establishments appertains to all the cities of the state, its defect being that it proceeds on an imperfect classification.
But it is not conceived that the other provisions of this statute are liable to a similar impeachment, and it is such latter provisions that are applicable to the present case.
The second clause of the section, part of which has been quoted above, is as follows, viz.: “ No person shall be removed from office or employment in the police department of any city, or from the police force of any city, for political reasons, or for any other cause than incapacity, misconduct, nonresidence or disobedience of just rules and regulations established or which may be established for the police force or police department of such city; provided, that any member of the police force of any city who shall be absent from duty, without just cause, for the term of five days, shall, at the expiration of said five days, cease to be a member of such police force.” And section 5 of the act reiterates this declaration, and prescribes the mode in which, for just cause, all removals from office shall be effected.
*489 It will be noted, therefore, that this provision is general: it applies to this entire class of municipalities, and to every policeman, no matter what his tenure of office may be, and whether derived from statute or ordinance. The regulation is also complete and self-sustaining, being in no wise dependent on the preceding clause, and it is therefore severable and capable of separate enforcement. Its effect is this and nothing more: that hereafter no policeman in any city of the state can be removed from office except for misconduct, on cause shown and after trial. No reason is apparent why such an act is not constitutional, and, in a legal point of view, wholly unobjectionable.
The other objections taken in the brief of counsel have been duly considered, but being deemed plainly unsustainable, their discussion seems unnecessary.
The action of the common council, being in contravention of the prohibition of the statute above expounded, was properly nullified by the Supreme Court, and that judgment must be affirmed.