Barringer v. Miele, A--59

• Decision Date: 08 January 1951
• Docket Number: No. A--59,A--59
• Citation: 77 A.2d 895,6 N.J. 139
• Parties: BARRINGER et al. v. MIELE, Superintendent of Elections, etc.
• Court: New Jersey Supreme Court

Page 139

6 N.J. 139

77 A.2d 895

BARRINGER et al. v. MIELE, Superintendent of Elections, etc.

No. A--59.

Supreme Court of New Jersey.

Argued Dec. 11, 1950.

Decided Jan. 8, 1951.

Ira D. Dorian, Newark, argued the cause for appellants (Furst & Kessler, Newark, attorneys).

G. Dixon Speakman, Newark, argued the cause for the respondent. (Lester E. Mahr, Newark, attorney).

The opinion of the court was delivered by

CASE, J.

This is an action in lieu of prerogative writ brought in the Superior Court, Law Division, Essex County, by M. Clair Barringer and Harry W. Kendall, veterans of World War I, and Frederick H. Sharp, a veteran of World War II, against Anthony P. Miele, Superintendent of Elections and Commissioner of Registration in Essex County, New Jersey, whose offices were merged by statute in 1940, ch. 165, P.L. 1940, R.S. 19:31--2, 19:32--1, 2, 19:45--7, N.J.S.A. The complaint alleged that plaintiffs had been summarily dismissed contrary to the provisions of the Veterans' Tenure Act (38:16--1) and sought reinstatement and compensatory remuneration until reinstatement. On defendant's motion the complaint was dismissed for failing to state a remediable claim. The appeal, taken to the Appellate Division, has been certified on our onw motion.

Sharp was employed from January 16, 1934, to January 1, 1939, as an investigator and from January 1, 1939, to July 31, 1940, as Clerk-Investigator at which time his employment was terminated by the defendant; he was reemployed August 1, 1940, as a Temporary Clerk-Investigator and continued to be employed as such until April 9, 1949, except for the period from August 31, 1943, the November 16, 1945, while he was serving in the armed forces. He was reemployed on April 16, 1949, as Temporary Clerk-Investigator and continued until discharged, January 19, 1950. Barringer was employed on November 5, 1947, as a Temporary Clerk and continued until discharged on January 19, 1950. Kendall was employed by the Commissioner of Registration as Temporary Clerk on September 17, 1940, and continued until October 1, 1942. He was then employed by the Superintendent of Elections as a Temporary Clerk-Investigator and continued until his discharge on January 19, 1950. It is conceded that none of the plaintiffs were hired for a fixed term. The records of the County of Essex show that they were all hired as temporary employees. None of them was appointed to an office or a position or even an employment in the sense that he was to fill a chair which had been set up by statute or by ordinance or by any other machinery. Plaintiffs were employees taken on under temporary employment because, in the judgment of the defendant, their assistance was necessary, at the time, and so long as they should be retained, toward the doing of the current volume of work. They did not have distinctive jobs with predecessors or successors.

In 1923 the office of superintendent of elections was created for counties of the first class. (Pamph. Laws 1923 ch. 9.) Unusual provisions of the statute indicated a legislative scheme quite outside the usual bureau set up for either state, county or municipal purposes. The statute provided (sec. 1) that the office of superintendent of elections should be filled by appointment of the Senate and General Assembly in joint meeting assembled and (sec. 2) that 'each of said superintendents of elections may appoint a chief deputy, a clerk, a secretary and such other assistants as he may deem necessary to carry out the provisions of this act, and may remove the same whenever he deems it necessary so to do. Such persons when appointed by said superintendents of elections shall not be subject to any of the provisions of chapter 156 of the Laws of 1908 and the amendments thereto, but shall be in the unclassified service. Each of said superintendents of elections shall fix the salaries of the persons so appointed and said salaries certified to and approved under his hand shall be paid semimonthly by the county treasurer of the counties in which such persons are so engaged. All other necessary expenses incurred in carrying out the provisions of this act when certified to and approved by said superintendents of elections shall be paid by the county treasurer of the counties in which said superintendent of elections shall maintain his office.' Those provisions have been retained substantially unchanged (R.S. 19:32--1 and 2, N.J.S.A.). The legislature obviously intended to, and did, place in the hands of the superintendent of elections large and unusual determinative powers, including the hiring and removal, and the fixing of the number of and the compensation of his assistants and the requisitioning of funds. Sewell v. Board of Chosen Freeholders of Hudson County, 126 N.J.L. 186, 18 A.2d 408 (Sup.Ct. 1941). The legislature may by the manner in which it establishes or reconstructs a public office and by the character of authority which it gives in the supervision thereof indicate a purpose to exclude the employees from the application of the Veterans' Tenure Act. Di Angelo v. Keenen, 112 N.J.L. 19, 169 A. 728 (Sup.Ct. 1933). As interpreted in McCallion v. Allan, 134 N.J.L. 322, 47 A.2d 602 (Sup.Ct. 1946), the statute operates to give the superintendent the power of removal of employees unrestrained by the provisions of the Veterans' Tenure Act. Since the handing down of that decision, a large number of statutes, estimated at 65, affecting elections have been adopted; but the power of the Superintendent of Elections to hire and dismiss employees has not been changed and the language of the Veterans' Tenure Act has not been altered. In construing a statute it is to be assumed that the legislature is thorough conversant with its own legislation and the judicial construction placed thereon. Eckert v. New Jersey State Highway Department, 1 N.J. 474, 64 A.2d 221 (1949). The construction of a statute by the courts, supported by long acquiescence on the part of the legislature, or by continued use of the same language, or failure to amend the statute, is evidence that such construction is in accordance with the legislative intent. State v. Moresh, 122 N.J.L. 77, 3 A.2d 638 (E. & A. 1938). The content of the statute, the judicial expressions thereon and the acquiescence by the legislature convince us that the court below correctly determined the issue as to...