On appeal from the Superior Court, Appellate Division.
For reversal -- Chief Justice Vanderbilt, and Justices Wachenfeld and Ackerson. For affirmance -- Justices Heher and Burling. The opinion of the court was delivered by Wachenfeld, J.
The plaintiff was appointed secretary to the Director of Public Safety of the defendant township in 1944, and after the town adopted the provisions of the Civil Service Act was listed in the exempt division of the classified service by the Civil Service Commission.
On March 15, 1950, he was notified by letter that his employment was terminated in order to effect economy in the municipal government. The plaintiff thereupon petitioned the Civil Service Commission for a hearing, claiming his dismissal was illegal. The Commission, on April 10, 1950, notified him it had considered his petition and determined that the dismissal was a lay-off under its Rule 57, which effectuates the provisions of R.S. 11:22-9. Such a lay-off, it held, was not cognizable in a formal hearing but was to be "handled administratively according to the provisions of the rule."
The plaintiff appealed from this decision to the Appellate Division, which dismissed the appeal, holding the question was moot because of its judgment in the companion case of Weaver v. Twp. of North Bergen, 10 N.J. Super. 96 (App. Div. 1950), where it held the position occupied by the plaintiff had never been legally established.
The judgment of the Appellate Division in that case having been reversed by this court on other grounds, the question
presented is no longer moot but is one which must be decided on its merits.
The legality of the position is not an issue in this case, the sole question on this appeal being whether or not the plaintiff was entitled to a hearing before the Civil Service Commission for the purpose of determining whether his dismissal was lawful.
R.S. 11:5-1, relating to the duties of the Civil Service Commission, reads in part:
"The commission, in addition to the other duties imposed upon it by law, shall, as a body:
(d) Hear appeals, either as a body or through one or more members designated by a majority thereof to hear such appeals, of persons in the classified service sought to be removed, demoted in pay or position, suspended, fined or otherwise discriminated against contrary to the provisions of this subtitle, and ...