| N.J. | Mar 3, 1913
The opinion of the court was delivered by
The relator, Patrick J. Sullivan, was the warden of the Hudson county jail at the time when the Civil Service law went into operation, having been appointed to that position by Sheriff Kelley. Sheriff Wedin, who was Sheriff Kelley’s successor, removed Sullivan without charges or hearing and appointed John T. McOsker in his place. The relator attacked this appointment by quo warranto, and the facts being undisputed, the defendant filed a demurrer, which was sustained by the Supreme Court and judgment given in favor of the demurrant. This judgment is now here for review on error. The only question involved and presented is the applicability of the Civil Service law of 1908 (Comp. Stat., p. 3795), to the position of warden held by the relator.
The position assumed by the defendant is that the warden or head-keeper of the common jail did not hold his office under the government of the county, but was an “officer, appointee and employe of the sheriff,” and therefore not within the protection of the Civil Service law and hence was removable at the pleasure of the sheriff without a hearing or charges. To support this assumption it is argued that from the very earliest period in the history of jails in England and in this state the sheriff was the absolute custodian of the jail, and was held personally responsible for its management and for the escape of any prisoner confined therein. His employment of assistants to aid him in governing the jail was a personal one, and created the relation of employer and employe between them — the assistants being paid out of the emoluments of his office. That the act of 1905 in providing a salary for the sheriff in lieu of fees did not affect the na
This argument is unsound. The fallaciousness of it consists in the assumption of the defendant that the relation created between the sheriff and those he selects and employs as his assistants is a private and domestic one, that of master and servant, and governed by the law concerning such a relation. This is palpably an erroneous view of the matter. As soon as the sheriff selects and employs assistants they become the servants of that municipality for whom the sheriff is acting, as the agent, and they become amenable for their official misconduct, in the performance of the public duties devolved upon them in their respective positions, to the public. In concise terms they are minor public officials acting under the supervision of an official of a higher rank or grade. And further, the common jail of a county is not a private institution, but is, as has been well said by Mr. Chief Justice Gum-mere in Freeholders v. Kaiser, 46 Vroom 15, a county institution, and the burden of its maintenance has always rested
To adopt any other construction would tend to destroy the civil service, through the means of which the employes in all departments in the service of the state are enabled to attain a high standard of efficiency, and would practically prevent the application of the Civil Service law to evéry department of public service in this state, where clerical assistants are selected and appointed by the head of such department. This becomes strikingly manifest from an examination of the act fixing the compensation of certain public officers of the state (Comp. Stat., p. 4632), the second section of which pro
These persons are all employed by the heads of the departments with the approval of the governor, and yet it would hardly be said that they were not state officials protected by the Civil Service law. Another example to be noted is section 6 of Comp. Stat., p. 4634, by which the secretary of state is allowed $4,000 for clerk hire, for which he is required at all times to employ and keep in his office a sufficient number of competent clerical assistants.
An examination of the statutes on this subject shows that nearly all the clerks and assistants who are subject to the Civil Service law are employed by the head of the department and paid by the state. And this course is followed in each of the counties of the state where the clerk of the county and the surrogate are required to employ sufficient assistants for which the county - pays, and there has been no substantial reason given why the sheriff’s appointees after the sheriff was put on a salary and required “to select and employ the necessary deputies and assistants who shall receive such compensation to be paid monthly by the proper disbursing officer of the county,” should stand on a different basis. That the powers of the sheriff are subject to statutory regulation can be hardly doubted, when for a century the legislature has assumed this power. State v. De Lorenzo, 52 Vroom 613. It has granted to the sheriffs the care of the county jails; it has taken such power from the sheriff and committed it to the board of chosen freeholders, where it remains in most of the counties of this state, and it has in counties of the first class
If the warden of the comity jail is beyond the protection of the Civil Service law, simply because be is selected and employed by the sheriff, then every other clerical position which the law requires certain public officers to fill with assistants selected and employed by them, but paid by the county or state, would also be beyond the reach of this law. Again, if the defendant’s contention were upheld it would strike a disastrous blow to the well being of the state asylums and other institutions of that class where the superintendents thereof are empowered to select and employ their assistants, and yet it lias never been doubted that such assistants when appointed hold their several offices under the Civil Service law.
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. In order to carry out the legislative policy which bad in view the welfare of the people, in that, it may receive good and efficient service front its public servants the widest range should be given to’ (he applicability of the law.
This efficient service to which the public is entitled cannot he well subserved by a change in the persons who are appointed and employed by the sheriff lo take care of the jail every time a new sheriff is elected, since he can hold his office for no longer period than three years, and is ineligible to a re-election to succeed himself.
It is a self-demonstrative proposition that the warden of a jail during the three years of his incumbency of that office acquires by experience valuable knowledge of the duties required of him and efficiency in their discharge. He is more valuable in the public service than one who has not had that experience. There is nothing in the Civil Service law which prevents the discharge of an employe who may be found guilty
The principle involved in that case is now before this court, for the first time, in the case sub judice, and the views expressed by us are a disapproval of the doctrine laid down in Arbuckle v. Nelly, and lead to a reversal of the judgment of the Supreme Court with direction that the demurrer be overruled.
For affirmance — None.
For reversal — The Chancellor, Trenchard, Bergen, Mintdrn, Nalisch, Bogert, Vredenburgh, Congdon, Treacy, JJ. 9.