For the prosecutor, Mario H. Volpe.
For the respondents, David T. Wilentz, Attorney-General, and Harry A. Walsh.
Before Justices Case, Donges and Colie.
The opinion of the court was delivered by
CASE, J. The writ of certiorari brings up (1) an order made by the Civil Service Commission on September 16th, 1941, denying the petition of William H. Blackwell, prosecutor herein, for a hearing to determine his status with respect to the position of election clerk in the office of the Secretary of State and (2) the alleged action of Joseph A. Brophy, Secretary of State, in removing prosecutor from that position.
On July 8th, 1931, Thomas A. Mathis, Secretary of State, notified the Civil Service Commission that he had appointed Mr. Blackwell as Assistant Secretary of State, whereupon the Civil Service Commission voted that the appointment of Mr. Blackwell as Assistant Secretary of State at a salary of $3,000 per annum, effective July 7th, 1931, be approved in the unclassified division. Charles O. Fuller, who, until July
1st, 1936, had been the election clerk in the office of the Secretary of State in the Classified Civil Service, retired on the last mentioned date, whereupon a vacancy existed in the position of election clerk. On March 9th, 1937, the Secretary of State wrote the Civil Service Commission as follows:
"Mr. Charles O. Fuller, who was the Election Clerk in this office retired on pension from active duty on July 1st, 1936. I would like to have the Commission's approval on combining the position of Election Clerk with that of Assistant Secretary of State. The position of the Assistant Secretary of State is now held by Mr. William H. Blackwell at a salary of $3,000 per year. If the positions of Election Clerk and Assistant Secretary of State are combined, I would like to increase the salary to $3,600 per year. I would also request your Commission to approve the appointment of Elmer R. Hammell as Assistant Election Clerk at a salary range of $1,800 to $2,100."
The Civil Service Commission thereupon, according to its minutes, resolved as follows:
"By reason of the retirement of Charles O. Fuller, Election Clerk, who received a salary of $4,500 per annum, the Secretary of State has advised that the positions of Election Clerk and Assistant Secretary of State will be combined, effective April 1st, 1937, and that William H. Blackwell, Assistant Secretary of State, now receiving $3,000 per annum, will perform the combined duties at $3,600 per annum, and that Elmer R. Hammell, Clerk Typist, receiving $1,440 per annum, will be promoted to the position of Election Clerk at $1,800 per annum. The Commission has been advised of the approval of this arrangement by the Commissioner of Finance. The position of Assistant Secretary of State is in the unclassified division, while the position of Election Clerk is in the competitive division of the classified service."
It is doubtful whether the notation that Elmer R. Hammell was appointed to the position of election clerk is accurate; the letter, supra, from the Secretary of State indicated that the promotion was to the position of assistant election clerk, and so did the reply written by the Commission to Mr. Mathis under date of April 8th, 1937. [129 NJL Page 109] It is deducible from the proofs that after April 6th, 1937, Blackwell acted as election clerk, that there was no other person in the office who performed those duties and that he continued to act as election clerk throughout the term of Secretary of State Mathis. It was stipulated that on July 21st, 1941, a date made significant by the passage of a statute mentioned later herein, prosecutor was performing the same duties in the office of the Secretary of State that he had performed prior to the expiration of the term of Mr. Mathis, that on that ...