On application for writ of certiorari.
For the prosecutor, George Pellettieri.
For the defendant, Walter D. Van Riper, Attorney-General, and Joseph Lanigan, Assistant Attorney-General.
EASTWOOD, J. This is an application for a writ of certiorari "to review the action of I. Grant Scott, Clerk in Chancery of New Jersey, in trying charges to dismiss prosecutor, Paul S. Gallena, from his employment or position as Chief Clerk of the Office of the Clerk in Chancery." The principal ground advanced by prosecutor for the allowance of said writ is:
"(a) That the said defendant, I. Grant Scott, Clerk in Chancery, is biased and prejudiced against deponent and had already prejudged the case as is shown by the fact that he had previously discharged deponent without any hearing and, therefore, cannot give deponent a fair and impartial trial as provided by the statute in such case made and provided."
Prosecutor's employment is concededly "in the unclassified division" under the provisions of the Civil Service Act, R.S. 11:4-4 (m). His appointment is under the authority of R.S. 2:2-20, which admittedly vested the defendant with authority to make such appointment. The aforesaid power of appointment vested in the defendant gives rise to the corollary that the defendant is vested with the authority to discharge such employee. However, it is admitted that the prosecutor is an honorably discharged veteran of World War I and by reason thereof is entitled, under the provisions of
R.S. 38:16-1, et seq., known as the "Veterans' Tenure of Office Act," to hold his position and employment with the defendant during good behavior, and may not be removed therefrom except after a fair and impartial hearing, nor for political reasons.
Prosecutor was appointed to said position effective January 1st, 1945, on which date he commenced his employment and entered upon the performance of his duties. Defendant gave written notice to prosecutor on March 14th, 1947, that his services as chief clerk of said office were terminated effective April 15th, 1947. Defendant, upon being advised by the Attorney-General of New Jersey that, by virtue of the aforesaid "Veterans' Tenure of Office Act," prosecutor could not be dismissed from his position except for good cause shown after a fair and impartial hearing, reinstated prosecutor to his position of chief clerk. His employment in said position continued until June 30th, 1947. On April 25th, 1947, prosecutor was served with a specification of charges against him, preferred by one Helen Ryan, an employee in the office of the defendant, Clerk in Chancery. The trial of said charges before the defendant was set down for May 8th, 1947. At the hearing of said charges, and prior to the taking of any testimony, prosecutor entered a special appearance, and made a motion that the defendant disqualify himself "from trying said charges and that said charges be dismissed," on the principal ground that the defendant was "biased and prejudiced against deponent and had already prejudged the case as is shown by the fact that he had previously discharged deponent without any hearing and, therefore, cannot give deponent a fair and impartial trial as provided by the statute in such case made and provided." Other grounds were advanced by prosecutor at the same time for the dismissal of said charges against prosecutor. Prosecutor's motion was denied, as the result of which this application for writ of certiorari emerges. At the argument of this application, it was conceded by counsel that, if defendant is disqualified and precluded from presiding over the trial of the prosecutor, there is no other official or forum by whom the prosecutor could be tried on the charges preferred against him. Such a situation has been dealt with in the case of Zober v. Turner, Director of Department
of Public Safety, 106 N.J.L. 86; 148 A. 894. Chancellor Walker, who delivered the opinion for the Court of Errors and Appeals, stated, inter alia:
"There seems to be an agreement, or at least concession, to the effect that the Director of Public Safety of Passaic was the only official designated by law to try the case. The return to the certiorari states that at the beginning of the hearing there was presented an objection to his trying the charge against the chief of police upon the ground that the director was prejudiced; but that counsel for the chief did not show him any law by which any person other than he could hear those charges, &c.
"The burden of the argument of counsel for prosecutor-appellant is that the official who tried the cause was biased and prejudiced against the prosecutor-appellant, but nowhere in his brief is it shown, as already mentioned, that there existed any other officer who could under the forms of law try the cause. If there had been such it may be assumed that counsel would have made the demand for another judge when the chief was arraigned before the director. Therefore, we conclude that the Director of Public Safety was the only official who could try the charges. In virtue of which ...