Ross v. Board of Chosen Freeholders

90 N.J.L. 522 | N.J. | 1917

The opinion of'the court was delivered by

Garrison, J.

The court below, having rightly decided that the plaintiff held a position, and not an office, erred in denying his cause of action upon the doctrine .of Stulir v. Curran, which is applicable solely to an office and not at all to a position. The analogy which was supposed to justify the extension of this doctrine to the holder of a position is limited to certain of the qualities appertaining to the duties of both an office and a position, viz., their permanence and certainty; but, as was pointed out in Fredericks v. Board of Health, all analogy is lacking with respect to the obligation to perform such duties as are non-governmental, which is precisely the ground upon which the doctrine of Stuhr v. Cur-ran is founded. No analogy can bridge the distinction established by that ease between an office and a position or any other form of public employment. Every person engaged in the civil service is either part of a governmental system or he is employed to forward the work of such system; if the former, he is an officer to whom the doctrine of Stuhr v. Curran applies; if the latter, he is an employe to whom such doctrine does not apply.

The division of such employes into those holding positions and those having a mere employment, is one of convenience only, which, having been adopted hv the legislature, has called forth judicial definition, but, genetically, and for the application of judicial doctrines, there are but the two classes mentioned, viz., those who axe part of the government and those who are employed by it. Between these two one of the fundamental differences declared by the decision, in Stuhr v. Curran, is that as to the former all idea of a contract is excluded, whereas an employment, whatever may be its grade, connotes in some form the contractual relation of master and servant. A test, therefore, of the applicability of the doctrine of Stuhr v. Curran, is whether the relation of the parties is in legal contemplation that of master and servant; if it is, the doctrine peculiar to offices cannot be applied to it.

Flow, it is settled law that the appointment of the plaintiff as a guard in the Hudson county jail by the then sheriff created between the plaintiff and the defendant, the board of chosen freeholders, the relation of master and servant. Sullivan v. McOsker 84 N. J. L. 380.

The position involved in that case was that of jail warden, and the crucial question was whether or not the appointment by the sheriff constituted such appointee an employe of the county, the Supreme Court having held, following the case of Kelly v. Arbuckle, 78 N. J. L. 94, that the appointment by the sheriff did not have that effect. Sullivan v. McOsker, 83 Id. 16.

In reversing this decision of the Supreme Court, this court, speaking through Mr. Justice Kalisch, said:

“As soon as the sheriff selects'and emploj^s assistants they become the servants, of that municipality for whom the sheriff is acting as .the agent.”

It being thus settled in this court that a contractual relation 'existed between the plaintiff and, the defendant, it follows necessarily that it was error to apply to such a relation the doctrine of Stuhr v. Curran, from which all idea of a contractual relation is excluded.

This disposes of the main question argued upon the present appeal, but, inasmuch as the ease cited also disposes of certain subsidiary questions, two further excerpts from th’e opinion in that case will be quoted: “The fact that the county pays the warden for such services out of the county funds makes him an employe in the service of the county, and fherefore within the protection of the Qivil Service lavo.

“It must be borne in mind that the object of the legislature was to secure by means of the Civil Service law efficient public service in the state institutions and in the governmental departments of this state. Therefore, in applying this statute to any particular given case the court must above all recognize and enforce the broad public policy which underlies it.”

This means that in the given case before us the observance by the defendant of the provisions of the Civil Service law must be read into its contract with the plaintiff, and that for a breach of the contract thus constructed the defendant may be held liable for damages. Boylan v. Jersey City.

That the dismissal of the plaintiff by the sheriff in violation of the Civil Service act constituted such a breach is the necessary corollary of the decision that the acts of the sheriff within his delegated authority as agent for the board of freeholders are binding upon the hoard of freeholders. Apart from the decided case this must be so upon generál principles, since there is no question that the legislature made the sheriff the agent of the county in these respects, and there can be no question that in dealing with its governmental agencies the legislature may by general laws distribute authority among them and impute the responsibility for its exercise as it sees fit.

The case cited also puis at rest any question, if there can be any, arising from the circumstance that when the plaintiff in the present case was dismissed in 1911, the law as then declared by the Supreme Court in the Arbuckle case imposed no liability therefor upon the county. Tor the decision in the case cited was made not only in the face of the Arbuckle case, but also in tire face of the concrete decision of the Supreme Court in that very case itself. To judicial decisions thus reversing judgments previously rendered or overruling older decisions, the rule of legislative enactments has no application. What a court declares to be the law always was the law, notwithstanding earlier decisions to the contrary.

Such earlier decisions may indeed be cited elsewhere than in a court of justice in extenuation of unlawful acts that were apparently lawful at the time of their commission, but such considerations have no place in judicial determinations as to the legal liability for such acts with which alone we are now concerned. '

Prom this it follows that the fact that the defendant relying upon judicial decisions paid for the services rendered by the person whom the sheriff put in the position from which he had unlawfully dismissed the plaintiff has no greater legal significance than similar payments would have if made by an individual or by a private business concern under like circumstances. Por the hardships arising from the mistakes of courts the law has never undertaken to provide a remedy or to afford redress.

The question of damages was not reached in the court below, and hence is not raised on this appeal. The case must' be retried upon the unlawful discharge theory under the rules as to the measure and mitigation of damages appropriate to that branch of the law of contracts.

The judgment of the Supreme Court is reversed and a venire de novo awarded.

For affirmance—The Chief Justice, White, Taylor, JJ. 3.

For ' reversal — The Chancellor, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black; Heppenheimer, Williams, Gardner, JJ. 12.