On appeal from the Supreme Court.
For the relator-appellant, Meyer L. Sakin.
For the respondents-appellees, Walter S. Keown (George D. Rothermel, of counsel).
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. This matter was argued before Justice Donges in the Supreme Court on rule to show cause why a mandamus should not issue. The writ was denied. The court, however, permitted a moulding of the pleadings as though the determination had been on demurrer to a return to an alternative writ. The relator appeals.
From the record before us these facts appear: The relator, James A. Maguire, was in the employ of Camden county as a guard in the county jail. He was protected in the position he occupied by the provisions of the Civil Service act. The sheriff of the county, his immediate superior, suspended him on August 24th, 1937, for conduct unbecoming a public
officer, to wit, intoxication. He was tried on this charge and dismissed on August 28th, 1937. On appeal to the State Civil Service Commission, it was ordered by that tribunal that the relator be returned to duty as of February 22d, 1938. The finding and judgment of the commission are set out in full in the state of case. In substance it is a concurrence in the determination of the departmental head that the relator was guilty of the charge upon which he was tried. The finding then goes on to say, "On the basis of the testimony offered, it is clear that the appellant should be disciplined, but it is the conclusion of the commission that the extreme penalty of dismissal does not fit the case. A suspension and loss of pay for a considerable period would seem to be fully adequate. The commission suggests six months as a maximum." Thereupon it was ordered that the appellant "be returned to duty, with pay, as of February 22d, 1938."
The relator reported for duty on February 22d, 1938, and thereafter from day to day, but the respondents declined to reinstate him. This was the posture of things when, on rule to show cause, his application for mandamus was denied, as mentioned above.
On this appeal, it is argued that since the respondents have not appealed from the judgment of the Civil Service Commission then the relator is entitled to the benefits of the decision and that the failure of the respondents to reinstate the relator is illegal and oppressive. In support of this position, it is said that the judgment of the Civil Service Commission is final; that the issue is res judicata; and, in any event, the judgment of the Civil Service Commission may not be collaterally attacked.
We think there is no merit whatever in the appellant's position. The Civil Service Commission is a statutory tribunal and possesses no jurisdiction except that which is expressly conferred by statute. It may affirm or reverse the finding of a departmental head in a case such as this but it may not modify it. Newark v. Civil Service Commission, 115 N.J.L. 26.
The relator, a person in the paid service of the ...