On appeal from the Supreme Court, whose opinion is reported in 124 N.J.L. 155.
For the relator-appellee, Frank I. Casey.
For the defendant-appellant, William Reich.
The opinion of the court was delivered by
WOLFSKEIL, J. This appeal is from a judgment of ouster rendered by the Supreme Court in favor of the relator and against the respondent with respect to the position of police justice in the city of Trenton. There is no factual dispute, the determination having been made upon demurrer to defendant-appellant's plea. Of the several issues of law presented, the main controversy hinged on the constitutionality of legislation which afforded exemption from termination of office upon change in the form of government of the municipality.
Relator was appointed police justice by the city council on February 17th, 1937, for a four-year term. The city then functioned under the city manager form of government. On April 11th, 1939, a referendum placed the city under the commission form of government through adoption of the provisions of R.S. 40:70-1, &c. Section R.S. 40:71-9 directs that on adoption of the act and the organization of commissioners elected, various named governing bodies shall be abolished and the terms of designated officers shall immediately cease. Exceptions to such termination of office are stated, the pertinent one in this case being that the provision shall not affect "* * * or other official or employe now protected by any tenure of office act."
After adoption of the changed form of government, commissioners were elected. They divided their duties and appointive powers among themselves. The commissioner
assigned to authority over the police department and police magistracy concluded that relator's position as police justice expired upon adoption of the commission form of government. He appointed defendant-appellant to the place, whereupon the relator, through quo warranto proceedings, challenged the validity of that appointment, urging his own right to the office.
The city of Trenton in 1911 adopted the Civil Service act, chapter 156, laws of 1908, as amended, now R.S. 11:4-1, &c. In 1934 the legislature enacted chapter 110 of the laws of that year, which provided in substance that when there was a change in the form of government in a municipality, "the officers and employes of persons in the classified and unclassified service of any subdivision of the government of this State where the civil service laws are operating shall be continued in service and all rights enjoyed as to pensions, terms of service and salaries shall continue notwithstanding such * * * change of form of government." This act is now R.S. title 11, chapter 28. Having been appointed for a definite term fixed by law, relator is concededly not in the classified service. He claims inclusion, however, in the unclassified list and therefore cites the support of the above statute to confirm his right to continue in the office. Appellant resists this on the ground that relator is not in the unclassified civil service list, and also that the statute depended on, R.S. title 11, chapter 28, is unconstitutional.
Appellant points out that R.S. 11:22-2, relating to civil service classifications, provides among other enumerations that the unclassified service shall include "Police magistrates appointed by the mayor or other head officer of the municipality * * *." Because relator was named not by such mayor or other head officer, but by the city council, appellant argues that the relator did not become part of the unclassified service under the wording of the Civil Service act, it being contended that there is a distinction between a governing legislative body and an individual administrative head. McKenzie v. Elliott, 77 N.J.L. 43. This cannot avail appellant. The language of the statute in defining the various types for classification is descriptive for purposes of inclusion,
but is not correspondingly exclusive, so that it does not specifically debar a magistrate appointed in the manner of relator. Moreover, the Civil Service act contemplated that the employes of a municipality adopting the act were to be regarded as constituting two main groups, with all belonging to one or the other. Since relator was not in ...