Ross v. Bd. of Chosen Freeholders of Hudson County

• Decision Date: 11 October 1917
• Docket Number: No. 132.,132.
• Citation: 90 N.J.Law 522,102 A. 397
• Parties: ROSS. v. BOARD OF CHOSEN FREEHOLDERS OF HUDSON COUNTY.
• Court: New Jersey Supreme Court

102 A. 397

90 N.J.Law 522

ROSS.

v. BOARD OF CHOSEN FREEHOLDERS OF HUDSON COUNTY.

No. 132.

Court of Errors and Appeals of New Jersey.

Oct. 11, 1917.

(Syllabus by the Court.)

Appeal from Supreme Court,

Action by John Ross against the Board of Chosen Freeholders of the County of Hudson. Judgment for plaintiff, and defendant appeals. (Reversed, and a venire de novo awarded.

The following decision was rendered by the circuit judge:

"This case is, by consent, tried before me without a jury on a stipulated state of facts.

"Plaintiff was employed as a guard in the Hudson county jail. His employment was under and subject to the civil service laws of the state of New Jersey. The sheriff of Hudson county dismissed plaintiff from his position without alleging any reason, without a hearing, and contrary to law. The state civil service commission refused to sustain the sheriff's said action on the ground that it was improper and illegal, and held that the plaintiff should be permitted to perform his duties as such guard, and plaintiff thereupon was allowed to perform his duties. It is stipulated that plaintiff's dismissal was contrary to law, and that he duly and regularly reported for work, and was at all times ready and willing to perform the duties of his said employment, but that he did not perform the same. It is also stipulated that plaintiff was prevented by the then sheriff of Hudson county from rendering any services as such guard in said Hudson county jail from November 30, 1911, up to March 19, 1913, for which period he sues herein to recover his salary.

"There is no question made by either side but that a guard in a county jail holds a position (Cavenaugh v. Essex County, 58 N. J. Law, 531, 33 Atl. 943), nor is there any doubt that a position is analogous to an office, in that the duties that pertain to it are permanent and certain, but it differs from an office, in that its duties may be nongovernmental, and not assigned to it by any public law of the state (Fredericks v. Board of Health, 82 N. J. Law, 200, 82 Atl. 528). There as no doubt either but that one who becomes a public officer de facto without dishonesty or fraud on his part, and who renders the services required of such public officer, may recover the compensation provided by law for such services during the period of their rendition. Erwin v. Jersey City. 00 N. J. Law, 141, 37 Atl. 732. 64 Am. St. Rep. 584. It follows that he. the de facto officer, is entitled to the compensation. 60 N. J. Law, p. 150, 37 Atl. 732, 64 Am. St. Rep. 584. It was decided in that case that the de facto officer who actually performed the services was entitled to the compensation and that the de jure officer who had not performed them was not entitled to it. This conclusion is abundantly supported by the cases of Stuhr v. Curran, 44 N. J. Law, 188, 43 Am. Rep. 353; Uffort v. Vogt, 65 N. J. Law, 380, 47 Atl. 225; and Hoboken v. Gear, 27 N. J. Law, 265-278.

"The question for decision in this case is whether the cases above cited are applicable to the case now sub judice or whether the case of John Boylan, Appellee, v. Mayor and Aldermen of Jersey City, submitted March 25, 1914, and decided June 23, 1914, by the New Jersey Supreme Court, i? applicable. The opinion in the latter case, which is short, was as follows:

"'Per curiam. The appellee was employed in the street department of Jersey City at $65 a month. On August 17, 1912, he was suspended, and later was tried and dismissed. On appeal the civil service commission adjudged that he was illegally dismissed, and ordered his reinstatement; and on January 1, 1913, he was in fact reinstated. This suit is for $65 a month from August 17. 1912, to January 1, 1915, less what the appellee was able to earn. Judgment was given for appellee for the amount claimed. This was right. It is not the case of an office of position, but of a mere employment. Fredericks v. Board of Health, 82 N. J. Law, 200 . The action was based on an unlawful discharge. If there had been a contract for a fixed term, say, one year, judgment would unquestionably be founded on a sound legal principle. In our opinion, the tenure of office created by the legislative policy of the civil service act takes in legal theory the place of such contract, and hence by analogy the discharged employe, when reinstated by the Civil Service Commission, recovers upon the principle of an unlawful discharge, in which action under the civil service rule the technical difference between damages and wages docs not arise. If this is not so, a merc suspension, however unlawful, will accomplish all that a lawful dismissal could, and the civil service be thereby entirely emasculated.

"'The judgment of the First district court of Jersey City will be affirmed.'

"I think that the casts first cited, notably that of Erwin v. Jersey City and Stuhr v. Curran, are applicable, and that the case of Boylan v. Jersey City is inapplicable. It must not be overlooked that the court in pronouncing the opinion in Boylan v. Jersey City took particular pains to differentiate that case from one in which the case of an office or position was in question, and planted its decision firmly upon the ground that the case then before it was one of mere employment, thereby indicating that, if the case had been one of office or position, the result would in all likelihood have been different. Further, it cannot be denied that, if the ease were one of office, the defendant is entitled to prevail, and it seems to me that the analogy between an office and a position pointed out in Fredericks v. Board of Health, 82 N. J. Law, 200, 82 Atl. 528, and the fact that in this case the employment of the plaintiff was, in the light of the decisions and by the nature of the plaintiff's duties and functions and the source from which they emanated, of such a character as to make the analogy between it and an office too close to be overlooked or to work any difference in the adjudication that should be made in the case in hand.

"The above results in my finding in favor of the defendant and against the plaintiff in the present action."

Charles M. Egan, of Jersey City, for appellant.

James J. Murphy, of Jersey City, for appellee.

GARRISON, J. The court below, having rightly decided that the plaintiff held a position, and not an office, erred in deny- ing his cause of action upon the doctrine of Stuhr v. Curran, which is applicable solely to an office, and not at all to a...