The star and Newark advertiser. [volume] (Newark, N.J.) 1908-1909, 1909-02-13

that a hearing upon the charges is
The tight of an officer to continue in
MS place indefinitely depends there7
fore upon whether he comes Wltnn
the competitive or non-eompetltive
class of the classified services or
whether he comes within the exempt
class. and, since the commission IS
authorized to change the classincatlon
from time to time, as ii deems proper,
the necessary result is that the lnuen-
mite continuance in office OF one. whose
term has been definitely fNed ~ act
of the Legislature. is committed TO the
decision of the commission, winch may
ary it as it sees fit.
The Defendants Claims.
Among the officers embraced in the
classified service are the
lors. whose term is fixed by the statute
creating the Office at seven years, CO.
extensive with the term of the a
cellor and justices Of the. supreme
Court as fixed by the Constitution. II
the defendants construction IS correct,
the commission is empowered to change
this term of the Yice-chancellors tronll
seven years to a tenure during Soou
behavior while the Chancellor, who ap-
points them. and by tie Constitution
is the Court of Chancery. can only ho!d
for seven years. Such a conclusion Is
sufficiently startling, and II l felt con-
strained to adopt the construction, con,
tended for by the defendant, | should
entertain grave doubts as TO the con
stitutionality of the act The defend
ants brief comedies that the ACT IS I'M
constitutional so far as 1t attects !he
vice-chancellors. and this concession
seems necessary if the defendant $ con-
struction is adopted.
A construction which leads to de-
claring an act unconstitutional ought
not to be adopted if il can be aVolqeu.
1t is the duty of the courts to ADOPT
such a construction as will sustain
the constitutionality of IN act OF. the
Legislature Il il can be done. WlLhout
doing violence to the language or the
act. 1 think such a construction IS
The act deals with removals from and
then with appointments TO office. l nave
quoted section 2, which relates to removals.
I think this section refers only to officers
whose terms were not previously fixed by
law. II was this class which needed the
protection of the act, in order TO secure
Them against removal for political causes.
The word removal naturally applies 10
one whose term is indefinite; 1t does not
naturally connote the case OF an otncer
whose statutory term has actually expired.
In such a case there is a vacancy, ana no
removal is necessary. The distinction pc
tween removing an officer and ming an
existing vacancy not due to removal, but TO
expiration of term, is a natural one, and
makes a reasonable basis for classification.
I fail to see how any provisions OF the act
prohibiting removals from office can operas
to extend a term which has already been
fixed by act of the Legislature. l conclude,
therefore, that DIR. Elliott,s term was not
extended by the act of 1908. The result IS
that there should be judgment or CUSTER
which may be entered February Is.
Justice on Acts Meaning.
1t is argued on DR.. Elliott's behalf that
he is the head of a department, and, there
fore. within the unclassi1ed service. |
should have some difficulty in holding that
an officer whose duties are sinllaG TO those
of a coroner at common law, who has no
office in any county building and no clerical
force under him, is a heaed of a department
within the meaning of the statute. 1t seems
more probable thai "heads of departments"
in section II are the same class OF officials
as appointing officers and heads of de-
partments'' in section II, and the head OF a
department, office or institution" in serious
q. In those sections the words evidently
refer to some officer who has a clerical or
other force Under him. appointed by. hlln;
1t is, however, unnecessary for me to dwell
upon this, since I thinR other language OF
the act clearly indicates that the classified
service does not include officials with a
fixed statutory term who are appointed by
the board of chosen freeholders.
The object of the act is to secure a per
manent tenure to officers coming within
its provisions, and what | have already
said applies as forcibly to the case of
appointments of new officers as to the
removal of old ones. IL this construc-
ton We're adopted, the term would depend
on the will of the Civil Service Commits
sion, and their resolutions would operate
to repeal Legislative enactments. Such a
construction is not required. The section
which provides the method of appoint
ment in the classified service t~section 2D
enacts that the head of a department,
office or institution in which a position
classified under this act is to be filled
shall notify said commission of that fact"
The commission is then to certify three
candidates..
The Board of Chosen Freeholders is not
"a mere appointing body: it is the county
legislature; the civil service act itself is
in force in Essex county only by virtue
of its ordinance. BY no stretch OF
language can such a Legislative body be
called a head of a department, office or
Institution These words naturally i'm
port an officer of an administrative char
acter; they are quite Inappropriate terms
to designate a body of a legislative char
acter.
The construction I have thus adopted
carries out the desirable end of protecting
the clerical force in our rnblic offices from
removal for political causes; it tends to
secure appointments for merit and fitness,
where there is a probability of determin-
ing that merit and fitness by means of
competitive or non-competitive examina-
tons; it avoids the absurdity of giving
the vice-chancellors, at the within of the
commission. n more cecure tenure than
the people have seen fit to give the chan
cellor and the justices of this court, and
it steers clear of the serious constitutional
objections to the act which the other
construction would involve.
Let Judgment be entered on February
16 that the relator is entitled TO the
office.