77 N.J.L. 43 | N.J. | 1908
The opinion of the court was delivered by
This case was argued before me, by consent, by way of rehearsal, in the hope of a speedy decision, which may be promptly reviewed. I will therefore not attempt an elaborate opinion, but will indicate shortly the conclusions I have reached.
First. I think the election of the defendant in May, 1907, if valid, could only have been for the unexpired term of his predecessor, and not for a new term of two years from the date of his own election. The act of 1900 (Pamph. L., p. 168) does not expressly define the term in case of an election to fill a vacancy, but it evidently contemplates that the term of service shall end with the first Monday of December of every second year, so as to be coterminous with the term of the freeholders. The reasoning of Judge Folger in People v. Potter, 47 N. Y. 375, cited in relator’s brief, is convincing, and is supported by the result in People v. McClave, 99 Id. 83.
Second. The question raised as to the constitutionality of the act of 1908, called the Civil Service act, is an interesting question if, as the defendant contends, the effect of the act is to give him a secure tenure during good behavior. By section 12 the civil service commission is directed to arrange offices, positions and employments in the classified service in four classes, one of which is called the exempt class, in which appointments may be made without examination. Two other classes are called, respectively, competitive and non-competitive. In these classes appointments can only be made after an examination, and section 2 enacts that officers, clerks and employes now in the employ of the state or any municipality adopting the act, shall continue to hold their offices or employments and shall not be removed therefrom except after a
The pleadings raise the further question of the title of I)r. McKenzie to the office, and it is therefore incumbent upon the court to determine “the very right to the office,” to use the language of the Quo Warranto act. This depends upon somewhat different considerations arising out of the sections regulating appointments. It is argued on his behalf that he is the head of a department and therefore within the unclassified service. I should have some difficulty in holding that an officer whose duties are similar to those of a coroner at common law, who has no office in any county building, and no clerical force under him, is a head of a department within the meaning of the statute. It seems more probable that “heads of departments” in section 11 are the same class of officials as “appointing officers and heads of departments” in section 17, and “the head of a department, office or institution” in section 21. In those sections the words evidently refer to some officer who has a clerical or other force under him, appointed by him. It is, however, unnecessary for me to dwell upon this, since I think other language of the act clearly indicates that the classified service does not include officials with a fixed statutory term who are appointed by the board of chosen freeholders. The object of the act is to secure a permanent tenure to officers coming within its provisions, and what I have already said applies as forcibly to the case of appointments of
The construction I have thus adopted carries out the desirable end of protecting the clerical force in our public offices from removal for political causes; it tends to secure appointments for merit and fitness—the declared object of the act— in cases where there is a probability of determining that merit and fitness by means of competitive or non-competitive examinations ; it avoids the absurdity of giving the Vice Chancellors, at the whim of the commission, a more secure tenure than the people have seen fit to give the Chancellor and the justices of this court, and it steers clear of the serious constitutional objections to the act which the other construction would involve.
Let judgment be entered on February 16th that the relator is entitled to the office.