Antell, J.c.c. (temporarily assigned).
Plaintiff John B. Keenan is the commissioner of registration and superintendent of elections of Essex County. In this action in lieu of prerogative writs both he and co-plaintiff, Lester E. Mahr, seek relief from certain refusals of the county treasurer and the county board of chosen freeholders to pay Mahr's salary under appointments of the commissioner of registration. The refusals are defended on the ground that the appointments are unauthorized.
A member of the New Jersey bar since 1924, Mahr was appointed counsel to the commissioner of registration and superintendent of elections of Essex County effective November 1, 1940. On or about January 16, 1944 he was appointed legal assistant to plaintiff Keenan's predecessor in office and served in that capacity until June 27, 1968. By appropriate action he was certified as eligible for civil service status and was thereafter classified by the Department of Civil Service as a permanent employee. The effective classification date is June 1, 1952.
On June 27, 1968, defendant board of chosen freeholders, by resolution No. 37, directed defendant county treasurer to discontinue salary payments to Mahr or any other person who might be appointed to the position of legal assistant in the office of commissioner of registration and superintendent of elections, and to remove Mahr's name from the county payroll. No salary payments have since been made, although
Mahr regularly reports for duty and renders services substantially the same as those prior to June 27.
For reasons set forth by this court in Keenan v. Essex County Board of Chosen Freeholders, 101 N.J. Super. 495 (Law Div. 1968), I conclude that the position of legal assistant to which Mahr was appointed in 1944 never enjoyed legal existence and that he may not lawfully act in such a capacity. The application for his restoration to the payroll as a legal assistant is therefore denied. There can be no judicial restoration to a position which was never legally created. Kovalycsik v. City of Garfield, 58 N.J. Super. 229, 239 (App. Div. 1959). It follows that the tenure provisions of the Civil Service Act are not available to Mahr since these inure solely for the benefit of those who are lawfully in the employ of a governing body. Handlon v. Town of Belleville, 4 N.J. 99, 109 (1950); Grunewald v. Township Committee of Weehawken Tp., 18 N.J. Super. 401 (App. Div. 1952), certification denied 10 N.J. 145 (1952). One who was appointed to a nonexistent office is no better off in terms of job protection than one whose lawfully created position was abolished in good faith. In the latter situation it has been held that civil service security does not prevail. Kraibuehler v. Civil Service Commission, 134 N.J.L. 97 (Sup. Ct. 1946); Scowcroft v. Civil Service Commission, 13 N.J. Misc. 448, 177 A. 679 (Sup. Ct. 1935); 4 McQuillin, Municipal Corporations (3 rd ed. 1968), § 12.248(d).
On June 28, 1968, the day following the passage of resolution No. 37, plaintiff Keenan, purporting to exercise his statutory powers, appointed Mahr to the position of administrative assistant in the office of commissioner of registration and accompanied this action by filing with defendants a "Request for Personnel Action" which described the duties of this position. Defendants again refused to meet the salary expense thereof.
Plaintiffs argue that this appointment is in all respects valid under N.J.S.A. 19:31-2, which, in pertinent part, provides that the commissioner of registration
"* * * shall have power to appoint on a permanent, or temporary basis, such number of persons, as in his * * * judgment may be necessary in order to carry out the provisions of this Title,"
and that under the seventh paragraph of that section the county treasurer must pay the resulting salary expense, subject only to the $655,000 budget ceiling prescribed by N.J.S.A. 19:32-2. Defendants answer that the appointment violates the principle applied in Keenan v. Essex County Board of Chosen Freeholders, supra, since the duties of the new position do not significantly vary from those performed by Mahr as legal assistant. Also, it is said that the appointment assumes sole prerogatives of the Attorney General and exceeds the commissioner's statutory power.
An understanding of the contentions is aided by the following comparison of duties contemplated by the 1968 appointment as administrative assistant with certain of those contained in the 1952 Civil Service job description for what I have held is the unauthorized position of legal assistant. The latter document has been marked in evidence.
Legal Assistant Administrative Assistant
Confers with the Attorney General, Confers with county board of
prosecutor's office, police depart- elections, municipal clerks and
ments, county clerk, county board public officials ...