On rule to show cause why a writ of mandamus should not issue.
For the relator, Ernest L. Quackenbush (T. McCurdy Marsh, of counsel).
For the respondents, James F. X. O'Brien (Thomas M. Kane, of counsel).
Before Justices Case, Donges and Porter.
The opinion of the court was delivered by
PORTER, J. A rule to show cause is before us why a writ of mandamus should not issue directing the city of Newark to comply with an order of the Civil Service Commission to place Mahlon W. Parsons, Jr., the relator, in the position in the department of public affairs now held by Herbert Simon at a salary of $4,800 per year.
The facts are: That the city of Newark is subject to the provisions of the Civil Service act. Mahlon W. Parsons, Jr., the relator, is one of the engineers employed in the department of public affairs of the city and in the competitive division of the civil service. Relator was appointed an assistant engineer in that department on April 1st, 1921, and has been promoted several times to higher ranks and has had several increases in salary. On October 16th, 1928, he was promoted to the position of engineer in charge at a salary of $5,200 per year. For reasons of economy his salary was reduced to $3,300 per year on July 1st, 1933, and on September 1st, 1934, he was laid off. Following that he applied to the Civil Service Commission for an order of reinstatement which was granted. On May 1st, 1935, the city of Newark reinstated him in the position of principal assistant engineer, a grade lower than engineer in charge, and his salary was fixed at $4,000 per year. The reduction in grade was due to the fact that no vacancy then existed in the position of engineer in charge. The reductions in grade and salary were not due to any misconduct on the part of relator, he being entitled to full seniority rights and a preference in the event that an opening occurred in a higher position or rank in that department.
On April 22d, 1936, the board of commissioners of the city passed resolutions promoting John S. Flockhart from assistant engineer to principal assistant engineer at a salary of $4,500 a year and promoting Herbert Simon from assistant engineer to principal assistant engineer at a salary of $4,800 a year. At that date the relator was holding the position of principal assistant engineer at a salary of $4,000 a year with preferential rights, and both Flockhart and Simon held lower graded positions and were his juniors in point of service.
On May 9th, 1936, relator protested this action of the board of commissioners to the Civil Service Commission. On May 25th, 1937, the commission issued an order requiring that the city recognize the seniority rights of the relator and grant him the first opportunity to demonstrate his capacity as principal assistant engineer at a salary of $4,800 a year in the place of said Herbert Simon or as principal assistant engineer at a salary of $4,500 in the place of John S. Flockhart, as he might elect. He elected to take the higher salaried position. The city was advised of the action of the commission and of the election by the relator.
The city protested to the commission of its action and the commission on July 13th, 1937, reaffirmed its order and directed the city to comply therewith. Again on July 22d, 1937, the commission requested the city to comply or to promptly take action to review its order. No action to review has been taken.
The jurisdiction of the Civil Service Commission is not disputed. Nor is the seniority of the relator over both Simon and Flockhart.
We conclude that the relator's rights of seniority were violated when the resolutions of April 22d, 1936, were adopted in promoting Simon and Flockhart to higher positions ...