For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling, Jacobs and Brennan. For affirmance -- Justice Wachenfeld. The opinion of the court was delivered by Jacobs, J.
The Appellate Division in Rogers v. Dept. of Civil Service, 31 N.J. Super. 543 (1954) dismissed the appeal which the plaintiffs had taken from an adverse determination by the Department of Civil Service. We granted certification under R.R. 1:10-2.
The plaintiff John Rogers was employed in 1935 on the traffic maintenance squad in Passaic. In 1947 he was appointed as foreman of the parking meter and traffic maintenance division of the department of public safety; his title was later changed to traffic maintenance foreman. In 1940 the plaintiff Frederick E. Sieper was appointed as inspector of buses in the department of public safety; his title was later changed to transportation inspector. On July 13, 1948 Passaic adopted an ordinance which created various positions in its municipal government, including those held by the plaintiffs. On November 2, 1948 it adopted the provisions of the Civil Service Act and the plaintiffs continued in their positions without further appointment. Rogers testified that he was a "working foreman" and that, in addition to his supervisory functions, he did all types of traffic maintenance work, including the installation and painting of traffic stanchions, the repair of parking meters, and the collection of coins from parking meters. Sieper testified that, in conjunction with his transportation inspector duties, he performed miscellaneous work of the traffic maintenance division, including the installation of traffic signs, the repair of traffic
meters, and the making of parking meter collections. On March 17, 1950 Rogers and Sieper were laid off for reasons of economy and their positions were abolished when Passaic adopted an ordinance dated April 20, 1951 which listed the municipal positions but omitted those of traffic maintenance foreman and transportation inspector in the department of public safety.
Rogers and Sieper, both veterans and in the classified service, duly appealed to the Department of Civil Service which declined to order their reinstatement but directed that their names be continued "on the reemployment list for their respective positions." They then appealed to the Appellate Division which remanded the matter to the department for further consideration as to their demotional rights under R.S. 11:22-10.1 and R.S. 11:22-10.2. See Sieper v. Dept. of Civil Service, Passaic, 21 N.J. Super. 583 (App. Div. 1952). Thereafter the department made an adverse ex parte determination and they again appealed to the Appellate Division which remanded the matter for full hearing. On October 27, 1953 a hearing was held before the Civil Service Commission, stipulations were entered into, and evidence was taken. It appeared that when they were dismissed Rogers and Sieper were senior in grade and service to other persons in the department of public safety employed under the titles of traffic maintenance man, parking meter repairman, parking meter collector, automotive mechanic and administrative clerk. It further appeared that the number of employees and the budget of the parking meter and traffic maintenance division had increased since the plaintiffs were dismissed. Two new employees had recently been employed by the Division; one was appointed temporarily on July 7, 1953 as automotive mechanic; the other was appointed temporarily on July 7, 1953 and permanently on September 22, 1953 as parking meter collector. Notwithstanding the foregoing the Civil Service Commission ruled that there was "no job or position in a lesser category" to which either Rogers or Sieper could be demoted, as contemplated by R.S. 11:22-10.1 and
R.S. 11:22-10.2, and ordered that their names be continued on a special reemployment list for appointment to "the same or any comparable position as that from which they were separated as soon as the opportunity arises." They then appealed to the Appellate Division which held that the statutory demotional rights did not include the displacement of junior employees and sustained the commission's action. See Rogers v. Dept. of Civil Service, supra, 31 N.J. Super., at 546.
Passaic advances the preliminary contention that the plaintiffs never held de jure positions and were therefore not within the protection of the Civil Service Act. See Handlon v. Town of Belleville, 4 N.J. 99 (1950); Grunewald v. Township Com. of Weehawken Tp., 18 N.J. Super. 401 (App. Div. 1952), certif. denied 10 N.J. 145 (1952). On July 13, 1948 the city adopted an ordinance which created various municipal positions including bus inspector and foreman, parking meters and traffic maintenance division. Those positions were then occupied by the plaintiffs and they came within the protection of the Civil Service Act when it was later adopted. See Shibla v. Township Com. of Wall Township, 136 N.J.L. 506 (Sup. Ct. 1948), affirmed 137 N.J.L. 692 (E. & A. 1948). The Handlon case upon which the city relies is in nowise pertinent; there the position had not been created by ordinance prior to the adoption of the Civil Service Act and, indeed, had been deliberately omitted in the schedules referred to in the ordinance adopted shortly after the passage of the act. Cf. Weaver v. Twp. of North Bergen, 10 N.J. Super. 96, 102 (App. Div. 1950), reversed 6 N.J. 475 (1951).
The next contention advanced by the city is that R.S. 11:22-10.1 and R.S. 11:22-10.2 did not grant any mandatory demotional rights to the plaintiffs and that the commission's action did not violate the statutory terms or purpose. R.S. 11:22-9 had provided that when a civil service employee was separated for reasons of economy his name was to be placed on a special reemployment list; R.S. 11:22-10
had provided that when a civil service employee's position was abolished for reasons of economy he was "with the approval of the commission" to be demoted to some lesser position "in the same department in the regular order of demotion." See R.S. 11:15-7; R.S. 11:15-8. In Walklet v. Civil Service Commission, 114 N.J.L. 582, 585 (Sup. Ct. 1935), Justice Heher expressed the view that the demotional right thus conferred by R.S. 11:22-10 was "not a discretionary one"; in the course of his opinion for the former Supreme Court he said:
"And we see no force in defendants' claim, in the Lefkowitz case, that, where a position has been 'abolished for reasons of economy, or otherwise, and not because of delinquency' (the statutory language), the 'approval' of the civil service commission is necessary before 'any right of demotion accrued to' the prosecutrix, and that it rests within the sound discretion of the commission 'to grant or withhold said approval.' L. 1916, c. 122, p. 264. The highway commission did not invoke this statute. In fact, it sought the removal of prosecutrix in violation of its terms, and the statute is therefore not applicable. Moreover, the right thus conferred is not a discretionary one; the ...