For the prosecutor, Charles Bernstein (Warren Dixon, Jr., of counsel).
For the respondents, Henry L. Janowski (Jack Rinzler, of counsel).
Before Justices Bodine, Perskie and Porter.
The opinion of the court was delivered by
PERSKIE, J. The basic question requiring decision is whether the dismissal of prosecutor, a war veteran and an exempt fireman, without charges or hearing, from his capacity as an operator at the East Paterson pumping station of the water department of the City of Garfield, was improper.
The governing body of the City of Garfield, by ordinance, placed the management and operation of its water plant under the control of a board variously described as "Water Plant Commission" and "Water Commission." We shall hereafter refer to it in the manner lastly stated.
On March 11th, 1938, the Water Commission appointed prosecutor as a meter repair man, without a fixed term, at the salary of $150 a month. He was a veteran of the last war, and the holder of a Firemen's Exempt Certificate. He worked in that capacity (meter repair man) until September 1st, 1938, when a rather anomalous thing, to say the least, happened. By private arrangement, he effected a trade of his status with one Salvatore Scazzaro who then occupied the status of an operator at the plant receiving $175 a month. Apparently the reason for the change was that a meter repair man worked 5 1/2 days a week (he did not work on a Saturday afternoon nor on a Sunday), while an operator then worked seven days a week, and Scazzaro did not like to work on Sundays. Notice of the trade was given to the governing body of the City of Garfield. Thereafter the prosecutor was included on the payroll of the city as an operator and was paid accordingly. Prosecutor continued in his traded status until November 28th, 1941, when the Water Commission notified him that it had adopted a resolution discharging him (without charges or hearing) effective December 15th, 1941.
Prosecutor then sought and obtained a writ of certiorari to review his discharge.
Prosecutor contends that as a war veteran and as the holder of an exempt fireman's certificate his discharge was improper because it was not for "good cause shown after a fair and impartial hearing" and because he was discharged for "political reasons." N.J.S.A. 38:16-1 (Veterans Act) and N.J.S.A. 40:47-60 (Exempt Firemen's Act).
While there is some proof to support the suggestion made for prosecutor that he was discharged for political reasons, and while there is also some proof to support the suggestion made for respondents that prosecutor was discharged because he occasionally came to work while intoxicated, we do not find it necessary, under the circumstances, to consider either suggestion. For, it is conceded that the "sole question" for decision in the case at bar is whether prosecutor in his "capacity" as an "operator" held a "position" within the meaning of the War Veteran and Exempt Firemen's Tenure Acts. In other words, does the "nature" of the "duties performed by prosecutor" as an "operator" indicate that he held a "position" within the meaning of the aforestated acts? Our answer is in the negative.
1. The determinative characteristics of a position are that they are analogous to the duties of an office in that the duties pertaining thereto are "continuous and permanent," especially pertaining to the position assumed (Lewis v. Jersey City, 51 N.J.L. 240, 242; 17 A. 112), or are "permanent ...