For the prosecutor, Arthur T. Vanderbilt and G. Dixon Speakman.
For the defendants, Charles E. McCraith, Jr.
Before Justices Case, Donges and Heher.
The opinion of the court was delivered by
DONGES, J. This writ of certiorari brings up for review a determination of the Civil Service Commission setting aside the dismissal by the prosecutor, sheriff of Essex County, of the defendant Joseph Katowitz from the position of secretary to the sheriff, and ordering his reinstatement.
Katowitz was appointed by the sheriff who immediately preceded prosecutor in office. The practice had been for an incoming sheriff to appoint a new secretary and for the secretary of an outgoing sheriff to relinquish his position at the end of the sheriff's term. When Sheriff Young took office he designated Katowitz as acting executive clerk and appointed one Edith Nieburg as his secretary. Katowitz took leave of absence from his position as secretary. Upon the making of a
permanent appointment to the position of executive clerk, following an examination, Katowitz was required to relinquish this position and thereupon demanded to be reinstated as secretary, claiming the protection of the Civil Service Law.
The Civil Service Commission determined that the position of secretary to the sheriff was in the exempt class of the civil service, that Katowitz could not be dismissed from his position except for just cause, that his dismissal was improper and that he should be reinstated.
The position of secretary to the sheriff was classified by the board of freeholders of Essex County in 1920 and the classification was approved by the Civil Service Commission. The duties were defined, qualifications set out and the salary fixed.
The first point argued is that the position in controversy is that of confidential secretary to a state officer and the holder thereof is in the unclassified service. The argument is that the sheriff is a constitutional officer of the state at large and not of the county, and therefore he may appoint a confidential secretary under the Civil Service Act dealing with the state service. But it has been held by the Court of Errors and Appeals in Sullivan v. McOsker, 84 N.J.L. 380, that an appointee of the sheriff (in that case a jail warden) is an employee in the service of the county coming within the purview of the Civil Service Law as it pertains to counties. By no method of reasoning, as we view it, can the present case be distinguished in that regard. There is no merit in this point.
The next point is that in providing for the position of private secretary the legislature intended that the tenure was subject to the will of the appointing authority and coterminous with his incumbency. It is argued that the only provision for this position, if ...