Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Eastwood, J.A.D. Jacobs, S.j.a.d. (dissenting).
The Township of North Bergen appeals from an order of the Civil Service Commission, Department of Civil Service of the State of New Jersey, directing that the respondent, Charles J. Weaver, be restored to his position as Secretary to the Director of Public Safety.
The respondent was appointed by the Director of Public Safety to the position in question on June 7, 1944. The Civil Service Act was adopted by the voters at a referendum election held on May 13, 1947. On April 7, 1948, the Township Commission enacted an enabling ordinance, attached to which and made part thereof were schedules setting forth the complete list of the employers of the municipality, their class, the jurisdiction service and division to which the position occupied by each employee was allocated, and suggested salary ranges. In the schedules made a part of the ordinance, respondent was classified as "Secretary to the Director of Public Safety," at a salary of $2,800. On January 27, 1948, the Civil Service Commission so classified the respondent on its records and placed him in the exempt division. On August 3, 1949, following an election which brought into office a new regime, his employment was terminated by the Director of Public Safety, on the ground of his alleged absence from duty for a period of five days. As the result of a hearing before the Civil Service Commission, to whom respondent appealed from his dismissal, it was determined by the Commission that the basis for his dismissal had not been substantiated by the evidence and restoration to his position was ordered.
Appellant contends that respondent's dismissal was valid; that his position had not been lawfully created and, therefore, he was not entitled to continue therein. Respondent contends that his position was lawfully created by the ordinance of April 7, 1948, making operable the provisions of the Civil Service Act. It is not quite clear from the record as to how respondent's position was originally created. The only pertinent testimony is that of Mr. Weaver who stated:
"* * * I was made -- on May 24, 1944, I was appointed by the then Director of Public Safety, Paul F. Cullum, as Secretary." Other than the civil service ordinance, the record does not disclose that the respondent's position was originally created by either an ordinance or resolution, or that any ordinance was adopted fixing his salary. Therefore, the question for our determination is whether the 1948 ordinance lawfully created Weaver's position. We think it did not. In fact, this issue has been clearly and decisively disposed of adversely to respondent's contention in several cases, the latest of which is Handlon v. Town of Belleville , 4 N.J. 99 (Sup. Ct. 1950), wherein it is held:
"But it is urged that appellant was 'in the employ' of Belleville when the Civil Service Act was adopted by the municipality, and so within the protection of the civil service tenure extended by R.S. 11:21-6 to 'all officers, clerks and employees in the employ' of the municipality, except 'such as may be appointed between the time of the filing of the petition for the adoption' of the Act 'and the holding of the referendum.' It is said that appellant was one of the 'employees' of the Town when the Act was accepted and 'his duties came "within the competitive or noncompetitive class of the civil service,"' and so he 'became an employee in the classified service when civil service became operative in the town.' The fallacy of this reasoning is patent.
"It was not designed by the cited provision to bring within the ambit of the statute persons claiming offices or positions which had no legal being, and thus to create offices and positions having no existence before. The act has no such sweep. Its aim was the security of tenure during good behavior for those of the particular class who were lawfully in the employ of the municipality, not those who had usurped authority in places having no legal sanction whatever. Validation was not in legislative contemplation. De jure offices and employments alone were in view. This interpretative principle has been consistently applied to this and similar statutes in the cases cited supra., e.g., Toomey v. McCaffrey; Van Brookhoven v. Kennedy , 125 N.J.L. 178 (Sup. Ct. 1940); affirmed, Id. 507 (E. & A. 1941); Moriarty v. Board of Education of Garfield , 133 N.J.L. 73 (Sup. Ct. 1945); affirmed, 134 N.J.L. 356 (E. & A. 1946); City of Orange v. Goldberg, supra."
In light of the Handlon case , we perceive no point in pursuing any further discussion of the issue.
Respondent contends that this appeal should be dismissed because of appellant's failure to perfect it in compliance
with Rule 1:2-5. Rule 1:2-5(f) provides that where the appeal is from a final agency decision, the time shall run from the date of the service of a copy of the decision. Such service was made here on February 23, 1950. Service of copy of the notice of appeal was acknowledged by the respondent and the Civil Service Commission on March 21st and March 23rd, respectively. The notice of appeal should have been filed on March 26th, whereas it was not filed until March 28th. To complete an appeal, it is requisite that the service of the notice and the filing thereof be accomplished within the aforementioned 30-day period and failure to do so ordinarily requires a dismissal. In re Pfizer , 8 N.J. Super. 6 (App. Div. 1950). The attorney for the appellant erroneously construed Rule 3:5-5 as allowing him ten days within which to file the notice of appeal after service thereof. The cited rule has no application to the filing of notices of appeal -- it deals with the filing of pleadings and papers at the trial level. A situation similar to that prevailing here arose in the Pfizer case, supra , decided subsequent to the filing date here. Under the circumstances here, we think the ruling in the Pfizer case is particularly apt. There, the court held, at pp. 9, 10:
"But the able lawyer who had charge of taking the appeal in this cause understood otherwise. He found in Rule 3:5-5 that papers which are served must be filed within 10 days thereafter. This rule, like all rules in Part III, seemed to apply to all divisions of the Superior Court, including the Appellate Division. Rule 3:1-1. He concluded that while service of the notice of appeal must be taken within 45 days, the notice might be filed any time within 10 days after service. Although, as stated above, we disagree with his conclusion, we consider it at least plausible. There also ...