2 McQuillin Municipal Corporations, Second Ed., 505, section 595(571), states, "Certiorari may also be invoked by an incumbent of an office to review proceedings which he apprehends may be used unlawfully to disturb him in enjoyment of his office." Citing Nickerson v. Board of Commrs. of City of Wildwood, 111 N.J. Law 169, 168 A. 142, which in turn cites earlier decisions to the same effect. See Hartley v. County Board of Elections, 93 N.J. Law 313, 107 A. 817; Murphy v. Board, 92 N.J. Law 244, 104 A. 304, 305; Moore v. Borough of Bradley Beach, 87 N.J. Law 391, 94 A. 316. See, also, 14 C.J.S., Certiorari, section 28a.
An examination of the facts makes the distinction obvious. Compare Nickerson v. Wildwood, 111 Id. 169, and Maxwell v. Wildwood, 111Id. 181; affirmed, 113 Id. 404. It seems to us that the Veterans statute conferred no tenure on these prosecutors while they were employed in the Emergency Relief Administration. The bureau itself being temporary, it follows that the employment was temporary.
The challenged action was plainly illusory. The case is ruled by Nickerson v. Board of Commissioners of the City of Wildwood, 111 N.J.L. 169; Maxwell v. Board of Commissioners of theCity of Wildwood, 111 Id. 181; affirmed, 113 Id. 404; Hunziker v. Kent, 111 Id. 565. See, also, Cahill v. Townof West Hoboken, 90 Id. 398; Newark v. Lyons, 53 Id.632; Angelo v. State Civil Service Commission, 6 N.J. Mis.R. 648; affirmed, 105 N.J.L. 629; Carroll v. City ofBayonne, 3 N.J. Mis. R. 308; Womsley v. Jersey City, 61 N.J.L. 499. Although the betterment of the public service is always of prime import, measures so designed must have due regard to the policy of the civil service law.
Mr. Justice Trenchard said in Garey v. Riddle, 84 N.J.L. 80 : "All that the act requires is that the prosecutor shall be an exempt fireman of any volunteer fire department holding an exemption certificate issued to him as such exempt member." See, also, Howley v. Wyckoff, 96 Id. 288; Nickerson v. Wildwood, 111 Id. 169, and Maxwell v. Wildwood, 111 Id.181. The respondent says that the prosecutor was not the holder of an exempt fireman's certificate when he took the position.
That finding is of course controlling on us. Such repeal of itself worked the abolition of the office of fire chief, previously held by prosecutor. Such being the case, the validity and effect of the new ordinance No. 209 and the resolution of October 16th, 1933, become immaterial for present purposes, unless indeed the office of fire chief was thereby revived under another name, as in Nickerson v. Wildwood, 111 N.J.L. 169. The Supreme Court did not so consider, so far as we can gather from the opinion.
This court recently held that the evident intent of the legislature was to protect those comprising the favored class from removal "except for good cause shown after a fair and impartial hearing," and that section 3 was intended to prevent, by indirection, the thwarting of that legislative purpose. May v. Board of Commissioners of the Town of Nutley, 111 N.J.L. 166; Nickerson v. Board of Commissioners ofWildwood, 111 Id. 169; Maxwell v. Board of Commissioners ofWidlwood, 111 Id. 181. The verb "abolish" imports absolute destruction. It has its root in the Latin word abolere, meaning "to utterly destroy.
The rule is that the abolition of an office or position held by one of the designated class does not contravene the provisions of the Veterans' and Exempt Firemen's acts (they are identical in form and substance) when such action is taken in good faith, and for the betterment of the public service. Reck v. Board ofCommissioners of North Bergen, 110 N.J.L. 173 ; Nickerson v. Board of Commissioners of the City ofWildwood, 111 Id. 169; Colgarry v. Newark, 85 Id. 583; Harker v. Bayonne, 85 Id. 176; Ingram v. Jersey City, 63 Id. 542; Caulfield v. Jersey City, 63 Id. 148; Beirne v. Jersey City, 60 Id. 109; Newark v. Lyon, 53Id. 632. But the position held by the prosecutor was not, in fact, abolished.