Shepp v. City Of Camden

• Decision Date: 31 July 1944
• Docket Number: No. 226.,226.
• Citation: 38 A.2d 453,132 N.J.L. 59
• Parties: SHEPP v. CITY OF CAMDEN et al.
• Court: New Jersey Supreme Court

132 N.J.L. 59

38 A.2d 453

SHEPP

v.CITY OF CAMDEN et al.

No. 226.

Supreme Court of New Jersey.

July 31, 1944.

Mandamus proceeding by William J. Shepp against the City of Camden and others to compel George E. Brunner, Director of the Department of Revenue and Finance of the City of Camden, to restore the relator to his position as assistant city counsel.

Application denied and rule discharged

May term, 1944, before BROGAN, C. J., and DONGES, and PERSKIE, JJ.

William J. Shepp, of Camden, pro se.

John L. Morrissey, of Camden (Norman Heine, of Camden, of counsel), for respondents.

BROGAN, Chief Justice.

This is on a return of a rule to show cause why a peremptory writ of mandamus should not issue commanding the Revenue and Finance Director of the City of Camden George E. Brunner, to restore William J. Shepp, the relator herein, to his position as assistant city counsel in that municipality. The Director of the Department of Public Affairs, E. George Aaron, has been added as a party for the reason that since the allowance of the rule on February 14, 1944, it appears that thereafter, on March 9, 1944, the legal Bureau of Camden was, by resolution of the Board of Commissioners, transferred and assigned to the Department of Public Affairs. The municipality conducts its affairs under the provisions of the commission form of government statute. It has also adopted the Civil Service statute.

It appears that the relator was appointed to the post of assistant city counsel of the City of Camden on May 1, 1938, and that he continued to function as such until July 15, 1942, at which time he was peremptorily dismissed without cause. An appeal to the Civil Service Commission resulted in a determination by that body on Sept. 1, 1942, that Mr. Shepp was in the exempt division of the classified service of the municipality and therefore protected from dismissal unless for cause. The dismissal of Mr. Shepp was set aside with the direction that he be restored to his position as assistant city counsel as of the date of his dismissal. On certiorari this court affirmed, City of Camden v. Civil Service Commission, 129 N.J.L. 354, 29 A.2d 733, holding that Mr. Shepp held a position, not an office, and that the position he held was comprehended by and included in the exempt class of the classified service as delineated in R.S. 11:22-26, N.J.S.A. On appeal the Court of Errors & Appeals affirmed the judgment of the Supreme Court. 130 N.J.L. 532, 33 A.2d 900.

The remittitur from the Court of Errors and Appeals went down Sept. 24, 1943. No action was taken by the municipality to restore the relator to his position but on Oct. 14, 1943, Mr. Shepp was advised, in writing, by Director Brunner that since he had been absent ‘for a period of longer than five successive days without leave * * * such absence is hereby considered your resignation from employment.’ At the same time he received his salary in full from the date of his dismissal, up to Oct. 13, 1943.

On being dismissed for a second time the relator gave notice of application for mandamus to compel his restoration. At the same time Mr. Shepp appealed to the Civil Service praying that the second dismissal be set aside. The application for mandamus was continued pending the appeal to the Civil Service Commission. On Jan. 4, 1944, the Civil Service Commission determined that the action of the Director of Revenue and Finance, removing the petitioner from his post in the legal department of Camden, should be set aside and the Director was ordered to restore Mr. Shepp forthwith to his position as of the date of the second dismissal. As a result of all this Mr. Shepp was directed to return to duty on Jan. 10, 1944, at the legal department of the city. He did so and was then and there instructed by the City Counsel, Mr. Morrissey, to report to the office of the Overseer of the Poor where he was given a written directive from the City Counsel that henceforth he was assigned to the Office of the Overseer of the Poor and to do any legal work incident to the operation of that department, which included interviewing parties complainant, drafting complaints, performing all court work connected with the Bureau, and the like. The...