| N.J. | Jun 20, 1916
The opinion of the court was delivered by
These are three cases upon certiorari against the commissioners of the city of Trenton, involving the legality of a resolution dismissing the prosecutors, Brokaw, Disbrow and Johnston, from their positions as employes of that city, and also bringing up a “ruling” of the civil service commission with respect to the pay of prosecutors, in view of which ruling the resolution of dismissal was adopted. The three eases involve the same questions and can be disposed of together.
The Walsh act was adopted in Trenton June 20th, 1911. In December following the people of that city adopted the Civil Service act. The former act was approved April 25th, 19.11, and the latter act April 10th, 1908. The civil service commission thereafter classified all the positions and offices in the city, among them the employes at the sterilization plant, who were designated as the “Labor Class.”
Thereafter the director of the city commissioners, in charge of this plant, appointed the prosecutors, whose names were taken from the list prepared at the instance of the civil service commission.
The prosecutors continued to serve in their positions at the sterilization plant until the city completed its filtration plant, in October, 1914, when the prosecutors were placed at work upon it. Meanwhile, the civil service commission, on Sep
The city commissioners thereafter met with the civil service commissioners and attempted a solution of their difficulties, with the result that the prosecutors were retained by the city commissioners, and their names were regularly certified upon the payroll of the water department to the civil service commission, which body in turn certified the list to the city comptroller for payment until November, 1915, when the civil service commission refused longer to certify. Thereafter the civil service commission notified the director in charge of the works that the positions held by the prosecutors must be filled from the eligible list of “Filtration Attendants.” This is the “ruling” brought up by the writ.
The prosecutors were then required, by resolution, to appear before the city commission and show cause why they should not be removed because of the civil service commission’s ruling. The prosecutors, in writing, denied the power of the city commission to remove them upon the ground stated, and insisted they could be removed only for misconduct or delinquency.
The «city commission thereafter, by resolution, dismissed them, and the writ brings that resolution also before us for review.
The Walsh act (Pamph. L. 1913, p. 836, ¶ 4, § 4) empowers the city commission to remove employes for cause, after a public hearing, in accordance with the Civil Service and Tenure of Office acts, where such acts have been adopted. We are not concerned with the legality or propriety of the action of the civil service commission in refusing to certify thé payroll, since the recognized legal method of testing that posture of affairs is by mandamus, and not certiorari. As to the civil service commission, therefore, the present writs will be dismissed.
We are concerned only with the dismissal of the prosecutors, by the city commission, under the circumstances, and
At the time of the adoption of the Civil Service act these prosecutors were lawfully in the employ of tiie city, and, when the sterilization plant was discontinued, it was. within the power of the city commissioners to transfer them to similar employment at another place, with the approval of the commission (Comp. Stat., p. 3803, § 23), or, in the discretion of the city commission, their positions could be abolished, which would entitle them under the act to have their names placed on a special list for reinstatement within two years to any similar position. Comp. Stat., p. 3804, § 23.
It is unnecessary to determine the legal status of the prosecutors under the provisions of the Civil Service act. It must suffice lo state that they were legally appointed as city employes, and that while the city commission had the power to transfer them to similar work in another place, or to abolish their positions, subject to the above provisions, yet, under the act of 1913, paragraph 4, section 4, they could be removed only for cause, after a hearing, which right was not accorded them in this instance.
The resolution before us will therefore be set aside.