For the prosecutor, Thomas M. Kane.
For the civil service commission, Duane E. Minard.
For Joseph A. Ward, Charles Handler.
Before Justices Case, Bodine and Donges.
The opinion of the court was delivered by
CASE, J. The writ brings up for review an order of the civil service commission setting aside the proceedings whereby Joseph A. Ward, an attorney and counselor-at-law, was removed from the position of legal assistant in the law department of the city of Newark, and directing Ward's reinstatement.
The city law department was established by an ordinance adopted January 27th, 1921, the language of which followed closely that of the authorizing statute. Pamph. L. 1920, ch. 65. Both the ordinance and the statute directed that the legal assistants should be within the purview of the Civil Service act of April 10th, 1908, its supplements and amendments, and should not be removed except as in that act provided. The city, having adopted the Civil Service law, submitted to the civil service commission, for classification, the position of legal assistant in the law department together with a statement of the qualifications of the position.
On October 26th, 1932, the board of commissioners of the city of Newark appointed Ward a legal assistant, "subject to and in conformity with the requirements and regulations of the Civil Service act." The appointment was certified to, and approved by, the civil service commission. At the time of and prior to the changes next mentioned, the city law department consisted of a corporation counsel, four assistant corporation counsels (the statutory expression) and three legal assistants. On May 16th, 1933, following the spring municipal election, the newly organized board of commissioners of the city resolved that "for reasons of economy the positions of legal assistants in the law department of the city of Newark be and they are hereby abolished, the same to take effect at once." It will be observed that the city commissioners unequivocally stated the purpose contemporaneously
with and as part of the resolution, and that the expressed purpose was not to accomplish a governmental change in structure or policy but to effect economy. At the same time the commissioners by a further resolution ratified and confirmed the appointment, contrary to the then existing ordinance, of six assistant corporation counsels (two more than theretofore), naming the appointees and fixing their salaries. We find no evidence, and none is brought to our attention, that the purpose in these departmental changes was other than the stated one of economy. A few days later the commissioners rescinded the removal resolution in so far as it related to the two legal assistants other than Ward. The net result was that, on the ostensible ground of economy, the assistant corporation counsels were increased from four to six, the legal assistants were reduced from three to two, the salary totals were increased, and the volume and character of work remained the same.
Ward appealed his removal to the civil service commission. The appeal was tried out on its merits. There was no objection raised below to the jurisdiction over parties or subject-matter or to the procedure followed; and none is raised here except as hereinafter mentioned.
Prosecutor upon its brief argues its second, third, fourth and fifth reasons. The first and sixth are but conclusions dependent upon sustaining one or more of the others. The second and third reasons are that the action of the civil service commission violates the home rule provisions of the Municipalities act (Pamph. L. 1917, art. 14, ch. 152, PP (c), (d), and of the Walsh act (Pamph. L. 1911, ch. 221), particularly the amendments to the latter act contained in Pamph. L. 1929, ch. 265, and Pamph. L. 1930, ch. 221. We find nothing in these statutory references to militate against the proposition, grounded in the foregoing statutory and ordinance mandates, that the office of legal assistant in the city of Newark is in the classified service and within the ...