On rule to show cause why a writ of certiorari should not issue.
For the prosecutor, Davis & Davis (James M. Davis, Jr., of counsel).
For the respondents, Lester A. Drenk.
Before Justices Parker, Bodine and Perskie.
The opinion of the court was delivered by
PERSKIE, J. The question we are asked to decide is whether prosecutor, an exempt fireman, employed and working for the county of Burlington, as a carpenter, is entitled to the benefits of chapter 385, Pamph. L. 1938, p. 964, providing for "tenure of office of exempt firemen?"
By the facts, as stipulated, it is conceded that prosecutor was, on June 16th, 1938, the effective date of the act of 1938, supra, and still is, an exempt fireman; that he is the legal holder of an exempt fireman's certificate; and that he caused his certificate properly to be filed in due season in the clerk's office of Burlington county. In other words, it is conceded that prosecutor has fully complied with all applicable requirements (R.S. 40:47-52) entitling him to all the rights and benefits given by law to an exempt fireman.
It is further conceded that as such duly qualified exempt fireman, prosecutor was employed by respondent, county of Burlington, in January of 1935, as a carpenter, in its bridge department. Prosecutor continued in that capacity from January of 1935 until December 31st, 1938, working nine hours a day, weather permitting, and on June 16th, 1938, he was receiving sixty cents an hour. At all times during his employment he was compensated on an hourly basis. His duties consisted chiefly of carpentry work connected with the building, repair and maintenance of such bridges which the county was by law required to construct, repair and maintain. He also performed such other duties as from time to time were assigned to him by the foreman or foremen under whom he worked. The tools which he used were furnished by the county. Once each week during his employment, a pay voucher was submitted to the Board of Chosen Freeholders which contained the name of the prosecutor, the number of hours of service rendered during the week and the amount of compensation to which he was entitled.
On January 3d, 1939, the then director of bridges announced that the services of all men who had been rendering service in the Burlington county bridge department would not be required by him or the county until further notice. Thereafter some of the employes theretofore laid off or discharged were recalled to work in the bridge department of the county, but prosecutor was not one of them.
It is further conceded that no charges, written or otherwise, were preferred against prosecutor; that no hearing was accorded him; and that the failure to continue prosecutor in his employment was in nowise predicated upon paragraph 4
of the act of 1938, supra, which provides, inter alia, that no employment, office or position to which an exempt fireman has acquired tenure shall be abolished on the ground of economy or otherwise, &c., save in the case of a "widespread depression" or ...