The plaintiff, Edward W. Greene, has instituted two separate actions, arising out of an alleged unlawful dismissal as clerk to the Hudson County Board of Health and Vital Statistics. One action is for summary review, under R.S. 11:25-4. The other is by a suit by way of a civil action in lieu of prerogative writ.
These actions are based upon questions of law and facts and under the rules are consolidated by order dated January 16, 1952. There is no oral testimony submitted to the court. The issues are presented by the pleadings and the pretrial order.
The court has considered the several exhibits offered, the briefs and oral argument of the parties.
The primary question seems to be, and counsel are in accord: Did the plaintiff have a term or a non-term appointment? Disposition of this primary question disposes of both claims of the plaintiff, under the Civil Service Act and under the Veterans' Tenure Act.
As I have stated, the plaintiff has instituted this suit for summary review, by way of complaint and order to show
cause, provided by Rule 3:79-2 and R.S. 11:25-4. In this action, the plaintiff alleges that his removal as clerk to the Board of Health and Vital Statistics of Hudson County, New Jersey, was in violation of the Civil Service Act and that the said plaintiff had tenure by virtue of the appointment held by him.
Plaintiff also, as I have stated, instituted suit by way of a civil action in lieu of prerogative writ, as provided under Rule 3:81. In this action, plaintiff alleges that his removal from office was in violation of the Civil Service Act and the Veterans' Tenure Act (R.S. 38:16-1 et seq. , as amended L. 1942, c. 83, p. 326).
Defendant's defense to this action is that the plaintiff's appointment to the office of clerk was in violation of R.S. 26:11-3, which provides that the county board shall fix the duties, term , and compensation of every appointee. Since the board must fix the term, defendant contends and argues that the Civil Service and the Veterans' Tenure Acts are not applicable, and that plaintiff's appointment, without term, is unlawful. If such is to be found to be a fact, of course, it maintains that the appointment was for a fixed term.
The facts, as the court understands them, and on examination of the pretrial exhibits, seem to conflict as to the date of the plaintiff's appointment as clerk. The different resolutions of the board of health and vital statistics offered by plaintiff and defendant, disclose different dates, but all indicate up to a certain point that the original appointment and those following were made for a definite term.
However, in 1948, on January 21, 1948, the said board, by resolution, rescinded plaintiff's term appointment, which said appointment was the appointment of December 1, 1945, and by the same resolution, that is, the resolution of January 21, 1948, appointed plaintiff clerk of the Hudson County Board of Health and Vital Statistics, having re-created the said position, effective ...