For the prosecutor, Leo J. Martini.
For the respondent, David T. Wilentz, Attorney-General, (Harry A. Walsh, Assistant Attorney-General, of counsel).
Before Justices Bodine, Heher and Perskie.
The opinion of the court was delivered by
PERSKIE, J. The question requiring decision is whether the appointment of a clerk to the First Criminal Judicial District Court of Hudson County is controlled by the judge of that court (N.J.S.A. 2:212-10) or by the provisions of our Civil Service Law (N.J.S.A. 11:4-1, et seq.).
The facts are stipulated and are not in dispute. By leave of the court, the use of the stipulation, in lieu of depositions, was granted. On October 20th, 1940, prosecutor, an honorably discharged veteran of the first World War, was appointed clerk of the First Criminal Judicial District Court of Hudson County (N.J.S.A. 2:212-4.1) by the judge of that court. N.J.S.A. 2:212-10. In due season, prosecutor did "take and subscribe" the "usual oath" of office and "entered into" the necessary "bond" to the state "conditioned for the faithful performance of his duties." N.J.S.A. 2:212-11. He immediately entered upon his duties and has since continued to serve as such clerk receiving the emoluments incident to his "state office."
Upon receipt of notification from the judge of prosecutor's appointment, the Civil Service Commission, pursuant to its practice of placing the office of clerks of Criminal Judicial District Courts "in the competitive division of the classified service" (N.J.S.A. 11:4-3), ordered that a "competitive examination" be held for the office, and that pending the result of that examination prosecutor's "temporary" appointment be approved. The Civil Service Commission notified the judge of its action and, taking the position that there was an "existing vacancy" in the office, caused public notice to be advertised of the "civil service test" to be held, for said office, on April 30th, 1942.
Prosecutor requested the Civil Service Commission to withdraw its advertised test or examination. That request was based on the premise that he was entitled to "tenure of office" during good behavior, both under N.J.S.A. 2:212-10 and N.J.S.A. 38:16-1, et seq. (Veterans Tenure of Office Act). His request was ignored. He thus invoked the aid of this court which granted him a writ of certiorari to review the actions of the Civil Service Commission in determining that his appointment is controlled by our Civil Service Law (N.J.S.A. 11:4-3), which has for its source L. 1930, ch. 176, p. 631, § 44, suppl. to L. 1908, ch. 156, p. 235, and provides:
"'Classified service' means, unless otherwise provided in this subtitle, all positions in the state service, whether paid or unpaid, full time or part time, whether existing or hereafter created, except positions held by persons enumerated in section 11:4-4 of this title."
N.J.S.A. 2:212-10, upon which prosecutor relies, is made applicable to the First Criminal Judicial District Court by N.J.S.A. 2:212-4.5. It has for its source L. 1926, ch. 204, p. 340, §§ 12 and 13, and provides:
"Each judge of a criminal judicial district court may appoint a clerk of his court, who shall hold office during good behavior, and who shall be removed for cause only after an opportunity to ...