Mensone v. New Jersey Dept. of Civil Service

• Decision Date: 22 March 1954
• Docket Number: No. A--587,A--587
• Citation: Mensone v. New Jersey Dept. of Civil Service, 104 A.2d 67, 30 N.J.Super. 218 (N.J. Super. App. Div. 1954)
• Parties: MENSONE. v. NEW JERSEY DEPT. OF CIVIL SERVICE et al. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 218

30 N.J.Super. 218

104 A.2d 67

MENSONE. v.NEW JERSEY DEPT. OF CIVIL SERVICE et al.

No. A--587.

Superior Court of New Jersey Appellate Division.

Argued Sept. 28, 1953.

Decided March 22, 1954.

George H. Stanger, Vineland, for plaintiff-appellant(Joseph Adamo, Vineland, attorney).

Lawrence N. Park, Camden, for defendant-respondent, the City of Vineland (D. Joseph Novaria, Vineland, attorney; Philip L. Lipman, Vineland, of counsel.

Before Judges CLAPP, GOLDMANN and EWART.

The opinion of the court was delivered by

EWART, J.A.D.

In the year 1930plaintiff was first employed as borough engineer by the Borough of Vineland and continued in such employment and office from February 7, 1930 until August 27, 1952, excepting only that he was absent serving in the armed forces of the United States from April 1942 until April of 1945, and excepting a short period when he was given leave of absence because of ill health following his release from the Army.On August 27, 1952he was ousted as engineer without a hearing and without charges having been preferred against him, and Albert H. Stubee was appointed engineer in his place.

On July 1, 1952 the Borough of Vineland and the adjoining Township of Landis were consolidated and became the present City of Vineland.

The Borough of Vineland, and later the City of Vineland, paid the plaintiff his compensation as borough engineer, and city engineer, without question during the years of his service up to August 27, 1952.Prior to 1948 his salary was on a yearly basis, payable weekly.Commencing June 1, 1948 his salary continued on a yearly basis but was made payable in semi-monthly installments.

In 1946 the Borough of Vineland adopted the provisions of the Civil Service Act and at that time plaintiff was placed in the classified service as borough engineer, and in 1947 the borough, by resolution, adopted the classification and salary schedule of the Civil Service classification officer.

By reason of certain correspondence between the solicitor of the city and the Chief Examiner and Secretary of the Civil Service Commission in July of 1952, the Secretary of the Civil Service Commission arrived at the conclusion that plaintiff had been improperly placed in the classified service and changed his classification to the unclassified service.Thereupon plaintiff appealed to the Civil Service Commission, which conducted a hearing on May 5, 1953 at which the Commission determined: (1) that plaintiff had been a De facto and not a De jure officer of the borough and city because his position as borough and later as city engineer had no legal premise or foundation by way of ordinance or resolution authorizing the same; (2) that plaintiff had been improperly placed in the classified service; and (3) that the action of the City of Vineland in terminating plaintiff's services as city engineer and in removing his name from the payroll was proper and should be affirmed and the appeal dismissed.

From the determination of the Civil Service Commissionplaintiff appeals to this court and now here asserts:

(1) That the Civil Service Commission erred in ruling that he was a De facto and not a De jure officer.

(2) That the Civil Service Commission erred in having ruled that he held an office for a fixed period of time and was therefore improperly placed in the classified service.

The defendant city contends:

(1) That under the statute, R.S. 40:87--15 N.J.S.A., the term of office of the borough engineer is fixed by law at a term of one year.

(2) That the Civil Service Act, R.S. 11:22--1 et seq., N.J.S.A., does not apply to municipal offices, the terms of which are fixed by law.

(3) That the Soldiers, Sailors, and Marines Act, R.S. 38:16--1, N.J.S.A., which affords protection to veterans in certain public positions or offices, has no application to those persons whose terms of office are fixed by law as is that of the borough or city engineer.

The office or position of borough engineer is recognized and provided for by L.1897, c. 161, § 3, as amendedL.1908, c. 67, § 1, L.1913, c. 191, § 1, andL.1922, c. 141, § 1.The amended act, as it existed at the time of plaintiff's employment as engineer of the Borough of Vineland, will be found in R.S. 40:87--15, N.J.S.A.The statute provides that in addition to the officers to be elected there shall be appointed a borough clerk and:

'There may be appointed a borough attorney, a borough engineer, * * * and such other officers as the council may deem necessary. * * * all of them shall hold office during the pleasure of the council.No officer shall be removed without being afforded an opportunity to be heard.Unless sooner removed, however, they shall hold office for one year and until their successors shall have qualified.'

The method of appointing a borough engineer is prescribed by the statute, R.S. 40:87--16, N.J.S.A.It provides:

'The mayor shall nominate and, with the advice and consent of the council, appoint all officers in this subtitle directed to be apointed, including the filling of vacancies in all appointive offices which shall be for the unexpired Term only. * * *'(Emphasis supplied.)

Thus the office or position of borough engineer is created or provided for by statute and the method of filling the office, as well as the term thereof, is likewise provided by statute.

While it is conceded that plaintiff was first employed as borough engineer in February of 1930, the record before us does not disclose that he was ever formally appointed by the mayor to the position or office of borough engineer nor that his appointment to that position or office was ever confirmed by vote of borough council, nor does it disclose that he was ever reappointed after the year 1930.Nevertheless, plaintiff continued in that office until August 27, 1952, excepting when he was away in the armed forces during the Second World War and excepting a short leave of absence for ill health, and during all that period of time performed the duties of an engineer for the borough and was paid a salary therefor with the approval of borough council.

Whether he was a De facto officer, as ruled by the Civil Service Commission, or a De jure officer, as he claims, we find it unnecessary to...