Eastwood, Bigelow and Jayne. The opinion of the court was delivered by Eastwood, S.j.a.d.
The substantial question is whether the defendant Louis P. Brenner (hereinafter referred to as "Brenner"), had such civil service protection in his position in the Hudson County Law Department as precluded his dismissal without being furnished with a written statement of the reasons therefor and without being allowed a reasonable time to make answer to any charges that might have been presented against him.
Mr. Brenner was appointed assistant county counsel by the board of chosen freeholders (hereinafter referred to as the "board"), without term, on April 22, 1948, effective May 1, 1948, and served in that capacity until his services were terminated by the board on January 12, 1950.
The Civil Service Commission had placed Brenner in the exempt classification in 1948, but when he appealed his 1950 dismissal, the Commission denied him a hearing, reversing the earlier decision that he was in the exempt classification and held that he was the holder of an office for a fixed term, under the provisions of R.S. 40:20-26, and that as assistant county counsel he was a law officer and in the unclassified service under R.S. 11:22-2, and, therefore, that his dismissal in 1950 was legal.
An appeal was taken by Brenner from this determination, but before the appeal was heard the issue was settled by stipulation of the parties that Brenner would be restored to his position, waiving his claim to back salary. The board contends that Brenner was reappointed and not restored. He continued in his position until again dismissed by the
board on December 3, 1951, on the adoption of a resolution terminating his employment.
On January 4, 1952 Brenner presented a verified complaint for summary review of the board's action to Judge Proctor, assignment judge for the Superior Court, Hudson County, seeking relief under R.S. 11:25-4. Judge Proctor signed an order directing the board to show cause why Brenner should not be reinstated, assigning Judge Joseph L. Smith to hear and determine same. Judge Smith decided the issue in favor of Brenner and entered an order to that effect on June 2, 1952.
The board instituted an action in lieu of prerogative writ in the Law Division, Hudson County, on July 16, 1952, to review the decision of Judge Smith.
In his answer Brenner challenged the jurisdiction of the trial court, contending that the board's appeal should have been to the Appellate Division of the Superior Court instead of the Law Division. The trial court affirmed the order of Judge Smith restoring Brenner to his position of assistant county counsel, dismissed the board's complaint and denied Brenner's motion to dismiss the board's complaint for lack of jurisdiction. Both the board and Brenner appealed from the ensuing judgment.
R.S. 11:25-4 provides as follows:
"When a board or body or public officer, official or employee of a county, municipality or school district, operating under this subtitle, violates any of the provisions of this subtitle in selecting persons for employment, or in the designation of any employee for appointment, or in the suspension or removal of employees from office, a citizen of this state may cause a summary review to be had of such illegal or unlawful action, by presenting a verified petition to one of the justices of the supreme court."
The board contends that Brenner, being the holder of the office in question, was not a citizen within the contemplation of R.S. 11:25-4; therefore, the remedy thereunder was unavailable to him; that R.S. 11:22-38 prescribes that the method of appeal by an affected employee should ...