On appeal from the Superior Court, Law Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling, Jacobs and Weintraub. For reversal -- None. The opinion of the court was delivered by Weintraub, J.
[24 NJ Page 116] Plaintiff, superintendent of public works of defendant municipality, filed a complaint in lieu of prerogative writ wherein he attacked the appointment of defendant Ahlers as township engineer on the thesis that the appointment invaded plaintiff's tenure under the civil service law. Plaintiff prevailed. On our own motion we certified defendants' appeal while it was pending before the Appellate Division. Upon the review, defendants for the first time questioned plaintiff's status under the civil service law and we remanded the cause to the Law Division for trial of the issue thus tendered. 20 N.J. 274 (1955).
The trial court found for plaintiff and entered an amended judgment which is now before us.
Defendants' challenge to plaintiff's status under the civil service law has two prongs: (1) that he is the head of a department and thus in the unclassified service, R.S. 11:22-2, and (2) if his office or position be deemed to be within the classified service, yet he was not effectively appointed because the ordinance under which he was initially appointed provided for a three-year term and he was not reappointed after an amendment of the ordinance changed the term to an indefinite one.
On January 23, 1936, the township adopted an ordinance creating a department of public works, consisting of the full membership of the township committee to be "presided over by a chairman to be selected by the Chairman of the Township Committee." The department was given "jurisdiction over the operation of all public projects," including the municipal water works and road work. It provided for the continuation of "the various committees presently in charge of respective public works." Thus continued within the department were the water committee and the road committee, headed by members of the township committee.
Plaintiff has been with the township since its formation in 1928, holding an elective office of road supervisor for a brief portion of his total service. It may be said for present purposes that his duties have remained essentially the same throughout. The ordinance of January 23, 1936 provided for the appointment of a superintendent of public works to hold office for a period of three years, and plaintiff was duly appointed on February 19, 1936.
At the general election of November 1937, the township adopted the provisions of the civil service law and on May
8, 1938 it enacted an ordinance adopting the classification prepared for it by the Civil Service Commission, wherein the superintendent was included in the classified service with duties described as follows:
"Duties: Under administrative supervision, to have charge of and be responsible for the work involved in the extension, operation and maintenance of the water supply system, and the construction and ...