On appeal from Superior Court, Appellate Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Burling, J.
This cause comes to us upon defendants' petition for certification to the Superior Court, Appellate Division, which we granted. 19 N.J. 339 (1955).
The plaintiff was employed by the city of Garfield as a switchboard operator in the City Hall from October 21, 1952 to January 15, 1954. On the latter date her services were abruptly terminated by resolution of the city council and Helen Vancho, a party defendant, was appointed in her stead. No charges were preferred against plaintiff nor was she accorded a hearing. She has challenged the legality of her peremptory removal by virtue of her status as an honorably discharged veteran under the provisions of R.S. 38:16-1, as amended L. 1942, c. 83, which provides, inter alia:
"No person now holding any employment, position or office under the government of this State, or the government of any county or municipality * * * or who may hereafter be appointed to any such employment, office or position, whose term of employment, office or position is not now fixed by law, and receiving a salary from such State, county or municipality, * * * who has served as a soldier, sailor, marine or nurse, in any war of the United States, * * * and has been honorably discharged from the service of the United States * * * prior to or during such employment in or occupancy of such position or office, shall be removed from such employment, position or office, except for good cause shown after a fair and impartial hearing, but such person shall hold his employment, position or office during good behavior, and shall not be removed for political reasons.
Prior to the amendment of 1942, R.S. 38:16-1 embraced only a "position" or "office" in the governmental sphere whose term was not fixed by law. See Lewis v. Bd. of Public Works of Jersey City, 51 N.J.L. 240 (Sup. Ct. 1889); Serritella v. Water Commission of the City of Garfield, 128 N.J.L. 259
(Sup. Ct. 1942). By L. 1942, c. 83 the statute was extended to public "employment," Fox v. Bd. of Education of Newark, 129 N.J.L. 349 (Sup. Ct. 1943), affirmed 130 N.J.L. 531 (E. & A. 1943), and the proviso that the act should not be applicable to appointments made for a "fixed or stated period of time" became part of the statute.
Plaintiff's rights under the statute are to be measured by her status as an employee. There is nothing in the record to indicate that she was occupying a "position" or "office" as switchboard operator for none had been created by statute or ordinance. See Handlon v. Town of Belleville, 4 N.J. 99, 108 (1950). Her duties did not partake of the governmental function nor were they of a singular nature. See Wilentz ex rel. Golat v. Stanger, 129 N.J.L. 606, 614 (E. & A. 1943); Freeholders of Hudson County v. Brenner, 25 N.J. Super. 557, 563 (App. Div. 1953), affirmed 14 N.J. 348 (1954). The evidence shows that plaintiff performed a variety of work -- switchboard operator, receptionist, information clerk. The city clerk testified that plaintiff assisted him in posting the payroll records. Her duties were assigned in accordance with her ability to perform the work. Although initially utilized as a clerk to the local board of assessors she was soon transferred to other responsibilities because of her inability to type.
The issue here thus resolves itself into the question whether plaintiff is entitled to the tenure accorded by R.S. 38:16-1 in her employee status.
The City Council of Garfield is authorized to hire employees under the terms of R.S. 40:107-1(84) (Acts Saved from Repeal):
"The city council may employ from time to time such assistants and employees as the necessities of the city may require, and may pay such compensation to them as such services may be deemed reasonably worth; * * *."
The facts surrounding plaintiff's employment are determinative of the case. At the trial of the cause evidence was introduced to show that ...