Gaulkin, Foley and Collester. The opinion of the court was delivered by Collester, J.A.D.
Plaintiff appeals from a summary judgment entered in the Superior Court, Law Division, in favor of defendants, denying plaintiff's claim of tenure as deputy surrogate of Union County under N.J.S.A. 40:38-25.1. The court's opinion is set forth at 84 N.J. Super. 117 (Law Div. 1964).
The facts are not in dispute. From March 1944 until August 1951 plaintiff was employed in the office of the surrogate of Union County as confidential secretary-special deputy surrogate. He was then appointed deputy surrogate and served in that office until January 1, 1959, when a newly elected surrogate appointed another person as deputy. Lehmann resumed his former position of confidential secretary-special deputy surrogate. On November 5, 1963 Surrogate
Eugene J. Kirk was defeated when he sought re-election. On the following day he appointed plaintiff as deputy surrogate, effective November 7, 1963. Notice of the appointment was given to defendant board of freeholders and a bond in the amount of $15,000 was entered into, as required by N.J.S. 2A:5-11. The oaths of office required by N.J.S.A. 41:1-3 and 41:2A-6 were administered to plaintiff by Kirk before his term expired. On November 18, 1963 defendant Mary C. Kanane assumed the office of surrogate. She immediately notified plaintiff that his appointment as deputy surrogate was terminated because she considered such appointment to have been invalid and ineffective. Thereafter she refused to include plaintiff in the payroll as deputy surrogate. The board of freeholders likewise refused to process papers relating to plaintiff's appointment or to include him on the payroll as deputy surrogate.
Plaintiff brought an action in lieu of prerogative writs in the Superior Court demanding judgment declaring him to be deputy surrogate, contending that he held tenure of office under N.J.S.A. 40:38-25.1. Defendants answered denying plaintiff's claim, and both sides then moved for summary judgment. The trial court entered judgment in favor of defendants, holding that plaintiff did not meet the age and period of service requirements for tenure as deputy surrogate under the statute.
The primary issue in this case is the construction of N.J.S.A. 40:38-25.1, which provides for tenure of deputy county clerks and deputy surrogates in counties of the second class. The statute is as follows:
"Any deputy county clerk or deputy surrogate in any county of the second class who has attained the age of fifty-one years, and who has been continuously in the employ of the office of county clerk or surrogate for a period of at least sixteen years, shall enjoy tenure of office, and shall not be removed therefrom except after due hearing, upon notice, for just and sufficient cause."
When plaintiff was appointed deputy surrogate, effective as of November 7, 1963, he was 63 years of age. He had been in
the employ of the surrogate's office since March 1944, a period exceeding the 16 years referred to in the statute.
The trial court in its interpretation of the statute stated,
"The statute under consideration (N.J.S.A. 40:35-25-1) does not provide that a person who has reached the age of 51 years and who has served in the office of the surrogate for at least 16 years shall acquire tenure upon his appointment as deputy surrogate. The statute does provide, however, that any deputy surrogate who has reached the age of 51 years and who has served in the office of the surrogate for at least 16 years shall acquire tenure. This wording would seem to evince a legislative intent that a person must hold the office or position of deputy surrogate when he has reached the age of 51 years and at the time he has reached the period of service of at least 16 years in the office of ...