Eastwood, Goldman and Francis. The opinion of the court was delivered by Francis, J.c.c. (temporarily assigned).
Appellant is chief clerk in the office of the sheriff of Passaic County. Prior to November 14, 1951 his annual salary was $6,600. On that day he received the following letter from the sheriff:
"This is to advise you that beginning November 14th, 1951, your salary as Chief Clerk has been changed from $6600.00 to $5300.00 per year.
(Signed) NORMAN E. TATTERSALL,
The legal propriety of this reduction is the sole issue for determination.
The record discloses that Scancarella was appointed as a clerk in the sheriff's office on a temporary basis on September 24, 1928 and received a permanent appointment as senior clerk on May 13, 1931. Subsequently he was permanently designated assistant chief clerk on January 1, 1939 and chief clerk on March 1, 1940. Salary increases were granted at intervals, and the last one on November 10, 1948 brought his annual compensation to $6,600.
The County of Passaic adopted the Civil Service Act (R.S. 11:22-1) in 1912 (see Steel v. Freeholders of Passaic
County , 89 N.J.L. 609 (E. & A. 1916)), and the sheriff's employees, such as the chief clerk, are within the benefit and protection of the act. It is undisputed that Scancarella's employment as chief clerk since March 1, 1940 was within the classified service as defined by sections 2 and 3 thereof (R.S. 11:22-2, 3), and that he was so listed on the records of the Department of Civil Service.
An appeal was taken from the salary reduction order to the Department of Civil Service. That department disposed of the matter simply by a letter to the effect that the Attorney-General had advised that the sheriff had the authority to reduce appellant's compensation if he so desired.
Appeal was then taken to the Appellate Division which remanded the record to the department for full hearing on the problem. On reconsideration the matter was submitted on the stipulation of facts which appears in the appendix, which facts are substantially as they are set forth above. The department filed a memorandum sustaining the action of the sheriff as authorized by R.S. 40:41-31.
The memorandum said, among other things, that "the Sheriff acted within his authority in setting the annual salary of the appellant at $5,300 and there is no basis to any ...