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State Highway Department of New Jersey v. Civil Service Commission

Decided: June 30, 1961.

STATE HIGHWAY DEPARTMENT OF NEW JERSEY, APPELLANT,
v.
CIVIL SERVICE COMMISSION OF THE DEPARTMENT OF CIVIL SERVICE OF THE STATE OF NEW JERSEY AND CHARLES W. KENYON, RESPONDENTS



For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Haneman, J.

Haneman

[35 NJ Page 321] This appeal involves the right of Charles W. Kenyon (Kenyon) to be reinstated as an Assistant Engineer in the New Jersey Highway Department (Highway Department) under N.J.S.A. 38:23-4 upon his separation from military service. The Civil Service Commission of the Department of Civil Service of the State of New Jersey

(Civil Service Commission) upon appeal from a determination of the Highway Department that Kenyon was not entitled to that position reversed the action of the Highway Department and directed his reinstatement. Plaintiff appealed to the Appellate Division and this court certified upon its own motion pending argument in the Appellate Division.

Kenyon entered the temporary employ of the Highway Department on August 14, 1929 as a Highway Inspector at a salary of $1,860 per annum. On February 15, 1930 he was regularly appointed to that position and continued in the Highway Department until July 2, 1940, when he was ordered, with his consent, to active military duty as a reserve army officer until January 1, 1941. Having obtained a military leave of absence from the Highway Department for that period, he undertook such active service. His initial period of service was, by orders, extended to October 30, 1942 and his leave of absence continued for the duration of his military service. Before the latter date the United States entered World War II and he was retained on active service, presumably in accordance with general orders. In 1944, as a result of a reclassification program, his title in the Highway Department was reclassified as Assistant Engineer, Highway. His military service was continued in the manner hereafter set forth until December 31, 1958, when he was retired as a Colonel, at his request.

Although it is admitted that he continued on active duty status from July 2, 1940 to December 31, 1958, the record does not disclose a complete chronological record of the manner in which such service was ordered. The following was shown by the exhibits and by the testimony of Kenyon.

On January 1, 1947 Kenyon, while on duty in China, was required by the Army to fill in a questionnaire which reads as follows:

"CATEGORY I I elect to continue on extended active duty for

an unlimited length of time.

CATEGORY II I elect to continue on extended active duty

until 30 June 1947.

CATEGORY III I elect to continue on extended active duty

until 31 December 1946.

CATEGORY IV. I elect to continue on extended active duty

until 30 November 1946.

CATEGORY V. I desire to be relieved from active duty at the

earliest opportunity.

2. WD Circular 220, dated 23 July 1946, amends WD Circular 366 1945 by adding the following categories:

CATEGORY VI. I elect to continue on ...


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