Rotherham v. Grece

• Decision Date: 18 February 1936
• Docket Number: No. 212.,212.
• Citation: 183 A. 291
• Parties: ROTHERHAM v. GRECE, Judge.
• Court: New Jersey Supreme Court

183 A. 291

ROTHERHAM

v. GRECE, Judge.

No. 212.

Supreme Court of New Jersey.

Feb. 18, 1936.

Original mandamus proceeding on the relation of John D. Rotherham, Jr., against Philip William Grece, Judge of the Second District Court of the City of Jersey City.

Writ denied, and rule discharged. Argued October term, 1935, before CASE and BODINE, JJ.

William A. O'Brien, of Jersey City (John Drewcn, of Jersey City, of counsel), for relator.

Carey & Lane, of Jersey City (Robert Carey and Harry Lane, both of Jersey City, of counsel), for defendant.

CASE, Justice.

Philip William Grece was, in February, 1930, appointed judge of the Second district court of the city of Jersey City for a term of five years. On August 20, 1932, he appointed, effective as of August 22, 1932, John D. Rotherham, Jr., to be his confidential employee or agent in that judgeship. In February, 1935, Grece was reappointed and on February 20, 1935, was sworn to his new term. On February 25, 1935, effective February 28, 1935, he summarily informed Rotherham that the latter's employment was terminated. Rotherham appealed to the Civil Service Commission, which decided that by reason of the fact that the position was in the unclassified service the commission had no jurisdiction. This is the return of a rule, sued out by Rotherham, directing the district court judge to show cause why a peremptory or alternative writ of mandamus should not issue directing restoration of Rotherham to his job.

The legal authority to set up the employment is not questioned. It remains, however, that the only apparent statutory authority is that which specifically classifies the employment as not in the classified service, viz., chapter 176 of the Pamphlet Laws of 1930, a supplement to the Civil Service Act, which in paragraph 17 of section 44 (Comp.St.Supp.1930, § 144—179(17) under the caption "Definition of Terms" provides: "The following terms, when used in this act, shall have the following meanings unless the context clearly requires otherwise: * * * (17) 'Classified service' means, unless otherwise provided in this act, all positions in the State service, whether paid or unpaid, whether full time or part time, whether existing or hereafter created, except those which are held by: * * * (m) One clerk or secretary and one confidential employee or agent to each * * * judge * * * when the said * * * judge * * * certifies to the Civil Service Commission that such clerk or secretary and such additional confidential employee or agent is essential to the work of the court." The prosecutor of the rule obviously accepts as sound the conclusion that he has no tenure under the civil service laws, but now asserts that he is entitled to protection by the terms of the Veterans Tenure Act. P.L.1907, c. 14, amended, P.L.1929, c. 29 (Comp.St.Supp.1930, § 191 —63).

The question of whether or not the duties actually performed by Rotherham were of a confidential nature is not to the point. It may be, as argued, that the judge, in declining to retain...