Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.
Plaintiffs appeal from the determination of the Department of Civil Service sustaining their summary removal as employees of the Board of Health and Vital Statistics of Hudson County.
Plaintiff Thomas P. Conroy entered the employ of the board with Civil Service Department approval as a utilityman on April 1, 1947. The other plaintiff, Thomas J. Keane, Jr., began like employment on October 1, 1948. No term of service was fixed for either of them. On September 30, 1953 they were discharged without charges or hearing. They urge
on this appeal that their employment is in the classified civil service under R.S. 11:22-1 et seq. , and that they are protected against removal until written charges have been preferred by the appointing authority and sustained after hearing. R.S. 11:22-38.
The board contends that under R.S. 26:11-3 appointments of all of its employees were required to be for a fixed term. Failure to do so, it claims, left the plaintiffs removable at will and did not have the effect of conferring civil service or tenure status even though Hudson County had long since adopted the Civil Service Act.
This Board of Health and Vital Statistics has a unique legislative history. It was created in 1874 by a special act of the Legislature applicable to Hudson County alone, and consisted of three commissioners, the county physician ex officio , and two commissioners to be elected by the board of chosen freeholders. L. 1874, c. 484, p. 569.
Originally it was authorized to appoint a clerk, whose salary was to be fixed by the board of chosen freeholders, and "in the time of the spread of any contagious diseases or epidemic, special health inspectors" at $5 a day for not more than ten days. No term of employment was fixed for the clerk. Id., section 2, and see Greene v. Hudson County Board of Health , 19 N.J. Super. 453 (Law Div. 1952). Authority to appoint other personnel is traceable through L. 1884, c. 193, p. 282, 288, sec. 11; L. 1885, c. 182, p. 239, 242, sections 10 and 11; and L. 1912, c. 245, p. 444.
Although the term of the commissioners was fixed at three years (section 1 of the 1874 act, supra) none of these acts used the word "term" in connection with appointments of other personnel nor does any language appear from which an intention to fix a term can be divined. For reasons to be stated, it is not necessary, under the circumstances present here, to deal with the doctrine, which was considered so vital prior to the advent of civil service legislation, namely, that the term of an employee is coterminous with that of the non-continuous body which appointed him. Talty v. Board of Education, Hoboken , 10 N.J. 69, 72 (1952).
The Civil Service Act (R.S. 11:21-1 et seq.) became applicable to Hudson County on January 1, 1912, having been adopted by the voters at the general election the previous November. Although the exact inception date does not appear in the record, it is undisputed that thereafter the employees of this board as an integral part of the county system, were placed in the classified service. Cf. State Dept. of Civil Service v. Clark , 15 N.J. 334 (1954). Presumably this was done conformably to R.S. 11:21-6 which absorbed existing classified service employees into the system, and to R.S. 11:21-4 which proscribed future appointment or dismissal of classified service employees of the county, except in accordance with the pertinent provisions of the Civil Service Act.
Prior to October 1, 1953, employees of the board, including the plaintiffs, were appointed without fixed term. At some earlier time, the County Law Department had advised that no authority existed for such appointments and that the applicable statute, R.S. 26:11-3, imposed a mandate for fixed terms only. See Greene v. Hudson County Board of Health, supra. Thereupon plaintiffs were notified that the department had been reorganized and that "all positions * * * have been established with proper titles, at fixed salaries and for a prescribed term of office." They were told also that the "positions" would become effective on October 1, 1953, and that they would be "notified of whatever disposition is made in your behalf." On September 30 they were informed that in the reorganization no "provision" had been made for the position of "Utilityman" and consequently their employment was terminated as of September 30.
All of the other employees, except the two plaintiffs, were rehired, or more accurately, perhaps, continued in employment at fixed salaries and for two-year terms. The "Utilityman" designation was changed to "Vital Statistics Clerk" but the duties remained the same. Prior to October 1 there had been eight utilitymen. The refurbished board started out with only six "Vital ...