For the relator, William J. Shepp, pro se.
For the respondents, John L. Morrissey (Norman Heine, of counsel).
Before Brogan, Chief Justice, and Justices Donges and Perskie.
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. This is on a return of a rule to show cause why a peremptory writ of mandamus should not issue commanding the Revenue and Finance Director of the City of Camden, George E. Brunner, to restore William J. Shepp, the relator herein, to his position as assistant city counsel in that municipality. The Director of the Department of Public Affairs, E. George Aaron, has been added as a party for the reason that since the allowance of the rule on February 14th, 1944, it appears that thereafter, on March 9th, 1944, the legal bureau of Camden was, by resolution of the Board of Commissioners, transferred and assigned to the Department of Public Affairs. The municipality conducts its affairs under the provisions of the commission form of government statute. It has also adopted the civil service statute.
It appears that the relator was appointed to the post of assistant city counsel of the City of Camden on May 1st, 1938, and that he continued to function as such until July 15th, 1942, at which time he was peremptorily dismissed without cause. An appeal to the Civil Service Commission resulted in a determination by that body on September 1st, 1942, that Mr. Shepp was in the exempt division of the classified service of the municipality and therefore protected from dismissal unless for cause. The dismissal of Mr. Shepp was set aside with the direction that he be restored to his position as assistant city counsel as of the date of his dismissal. On certiorari this court affirmed Camden v. Civil Service Commission, 129 N.J.L. 354, holding that Mr. Shepp held a position, not an office, and that the position he held was comprehended by and
included in the exempt class of the classified service as delineated in R.S. 11:22-26. On appeal the Court of Errors and Appeals affirmed the judgment of the Supreme Court (130 N.J.L. 532).
The remittitur from the Court of Errors and Appeals went down September 24th, 1943. No action was taken by the municipality to restore the relator to his position but on October 14th, 1943, Mr. Shepp was advised, in writing, by Director Brunner that since he had been absent "for a period of longer than five successive days without leave * * * such absence is hereby considered your resignation from employment." At the same time he received his salary in full from the date of his dismissal, up to October 13th, 1943.
On being dismissed for a second time the relator gave notice of application for mandamus to compel his restoration. At the same time Mr. Shepp appealed to the Civil Service praying that the second dismissal be set aside. The application for mandamus was continued pending the appeal to the Civil Service Commission. On January 4th, 1944, the Civil Service Commission determined that the action of the Director of Revenue and Finance, removing the petitioner from his post in the legal department of Camden, should be set aside and the director was ordered to restore Mr. Shepp forthwith to his position as of the date of the second dismissal. As a result of all this Mr. Shepp was directed to return to duty on January 10th, 1944, at the legal department of the city. He did so and was then and there instructed by the city counsel, Mr. Morrissey, to report to the office of the overseer of the poor where he was given a written directive from the city counsel that henceforth he was assigned to the office of the overseer of the poor and to do any legal work incident to the operation of that department, which included interviewing parties complainant, drafting complaints, performing all court work connected with the bureau, and the like. The depositions show that the relator performed the work incident to the Relief Department of the Bureau of Charities for one week when he complained to the finance director that this assignment was not a restoration to the position which formerly he enjoyed and that unless restored to that post he
would seek redress in the courts. Thereafter on February 14th, 1944, ...