63 N.J.L. 57 | N.J. | 1899
The opinion of the court was delivered by
The board of chosen freeholders of the county of Salem, at its annual meeting held in May, 1891, appointed, William Peterson, the prosecutor, as janitor of the court-house of the county. At each annual meeting of the board held thereafter up to that of May, 1898, the prosecutor was again appointed to that place. At the annual meeting held in the year 1898, one Joseph Vanneman was appointed in the place< of the prosecutor. The legality of this action is now sought to be challenged by the latter, who is an honorably-discharged Union soldier.
His claim is that by the appointment of Vanneman he was superseded as janitor in violation of the provisions' of the act of March 14th, 1895, entitled “An act regarding honorably-discharged Union soldiers, sailors and marines,” which declares that no honorably-discharged Union soldier who holds a position or office under the government of any county in this state whose term of office is not fixed by law shall be removed except for good cause shown, after a fair and impartial hearing, but shall hold his position or office during good behavior. Gen. Stat., p. 3702.
The first question which the case presents for consideration is whether a writ of certiorari is the proper method of procedure to test the legality of this action of the board, and its solution depends upon whether the janitorship of the county court-house is a public office or not. If it is, and if, as a result of this appointment, the prosecutor has been ousted from it, certiorari is not an appropriate remedy, and he can only be restored to the office by quo warranto proceedings.
In our opinion, the janitor of the county court-house does not hold a public office but does hold what the act of 1895 designates “ a position.”
The distinction between the two is clearly pointed out by Mr. Justice Dixon in Stewart v. Freeholders of Hudson, 32 Vroom 117, 118. He says: “An office is a place created, or at least recognized, by the law of the state, and to which certain permanent duties are assigned either by the law itself or by regulations adopted under authority of law. A position, within the purview of the act of 1895, is defined to be a place the duties of which are continuous and permanent arid which pertain to the position as such.” The place of janitor of the court-house does not possess the characteristics of an office, as thus defined, so far as the proofs show, but does come within the description of a position.
This brings us to the main question in the case, to wit, whether the appointment of Vanneman to supersede the prosecutor in the position of janitor was in violation of the proisions of the act of 1895.
That the appointment of Vanneman, if valid, put an end to the prosecutor’s employment is conceded. That an honorably-discharged Union soldier, who holds the position of janitor of the county court-house, is within the protection of the act of 1895, provided he does not hold it for a fixed and definite term, has already been decided by this court. Daily v. Freeholders of Essex, 29 Vroom 319.
It remains to be considered whether the term of office of the prosecutor was for a fixed and definite term.
It follows, therefore, that the appointment of Vanneman to the position of janitor of the court-house, in the place of the prosecutor, was in violation of the provisions of the act of 1895; that the writ of certiorari is the proper method by which to test the legality of his appointment, and that the prosecutor is entitled to continue to occupy that position, notwithstanding the action of the board in superseding him.
The action of the defendants, the validity of which is challenged by these proceedings, will be set aside, with costs to the prosecutor.