The opinion of the court was delivered by HEHER, J.
On April 24, 1947, after a public hearing on notice, the Director of Public Safety of Belleville removed appellant from the "office" of "clerk" of the local Recorder's Court for "neglect of duty, incompetency and inefficiency" in particulars not pertinent to the present inquiry. There was an appeal to the Civil Service Commission; and on July 1st ensuing the action of the local authority was sustained and the appeal dismissed. On the succeeding August 18th, appellant petitioned the Commission for a rehearing of the appeal; and on October 7th following, after hearing, the petition was
Citing the power to modify or amend the penalty conferred upon the Civil Service Commission by chapter 76 of the Session Laws of 1938, as amended by chapter 184 of the Session Laws of 1946 (N.J.S.A. 11:2A-1), appellant maintains that the Commission's adverse action in this regard is subject to reconsideration without a hearing on notice. The proposition is untenable.
The Civil Service Commission is a governmental administrative agency whose function in the particular circumstances is quasi-judicial, for it is of the general nature
The power to hear and determine is not peculiar to the judicial function. The mere exercise of judgment and discretion in the performance of an official act is not necessarily the exertion of what is denominated judicial power. State Board of Milk Control v. Newark Milk Co., 118 N.J. Eq. 504, 522 (E. & A. 1935); Arizona Grocery Co. v. Atchison
Here, the power exercised is indubitably judicial in nature. The Legislature has so considered it. The statute protects all officers, clerks or employees in the competitive class of the local civil service against removal or discharge except for cause, determined after a hearing by the appointing authority upon notice; and the Civil Service Commission is invested with the power of review of the action of the local authority, at the instance of the person so removed or discharged, exercisable also after a hearing upon notice in the mode characteristic of judicial proceedings. The parties may be represented by counsel; and the Commission "shall hear witnesses and receive all competent evidence produced and may compel by subpoena the attendance of witnesses and the production of evidence," and "shall determine the case upon the evidence presented." R.S. 11:22-38, 11:22-39, 11:22-40.
In analogy to the authority of courts of general jurisdiction at common law, administrative tribunals possess the inherent power of reconsideration of their judicial acts, except as qualified by statute. This function arises by necessary implication to serve the statutory policy. McFeely v. Board of Pension Commissioners, supra. In early times the power was exercisable by the common-law courts "at any time while the cause" remained "within the power and under the control of the court, provided the party" had "not slept on his rights, but * * * embraced the first opportunity he had of presenting his case," and the court could "hear the defendant without endangering the rights of the plaintiff as against him." Kelly v. Bell, 17 N.J.L. 270 (Sup. Ct. 1839); Assets Development Co. v. Wall, 97 N.J.L. 468 (E. & A. 1922). See, also, Breen Iron Works v. Richardson, 115 N.J.L. 305 (Sup. Ct. 1935). Out of a natural respect for the finality of judgments, the judicial hand was stayed unless the moving party practiced due diligence. Barring statutory regulation,
But the performance of this function is likewise conditioned by the demands of procedural due process for the protection of private and public interests. There cannot be a substantial change in the rights of the parties without a hearing on notice. Murphy v. Farr, 11 N.J.L. 186 (Sup. Ct. 1829); Protomastro v. Board of Adjustment of Hoboken, 3 N.J. 494 (1950); McFeeley v. Board of Pension Commissioners, supra. Here, so far as the record reveals, there was no consideration of time or circumstance which deprived the Commission of the power to modify the judgment by the substitution of the stated penalty for dismissal, if it deemed that course consonant with justice and the statutory policy, except the failure of notice and an opportunity to be heard on that issue after the denial of the petition for a rehearing. The Commission's jurisdiction had not terminated; but it was exercisable, on its own motion or at the instance of a party, only in the mode ordained by the rule of due process. It does not matter that this is not a controversy between private individuals involving personal or property rights, but rather the right to hold the claimed public office or position; the Legislature has provided for a hearing on notice and a proceeding judicial in nature. The action under review is therefore a nullity and, by the same token, subject to collateral attack. Maguire v. Van Meter, 121 N.J.L. 150 (E. & A. 1938); Miske v. Habay, 1 N.J. 368 (1949).
But the proceeding is not maintainable for want of a res within the cognizance of the Civil Service Commission.
The claimed office has no existence in the law, for lack of an ordinance creating it. It is settled law that under R.S. 40:48-1, a municipal office or position, if not created by statute, can come into being only by ordinance of the local governing body. The sense of the statute is that, because the creation of offices and positions involves an increase of the financial burden of local government, the power is exercisable only by ordinance, a deliberative process requiring notice to the public. Toomey v. McCaffrey, 116 N.J.L. 364 (Sup. Ct. 1936); Serritella v. Water Commission of Garfield, 128 N.J.L. 259 (Sup. Ct. 1942); Davaillon v. Elizabeth, 121 N.J.L. 380 (Sup. Ct. 1938); City of Orange v. Goldberg, 137 N.J.L. 73 (Sup. Ct. 1948).
The "existence" of the office or position is not "implicit" in R.S. 2:225-1, authorizing the local governing body, by resolution, to appoint a recorder for a term of five years, and R.S. 2:16-4, providing that no judge "of any court of law shall act as the clerk of the court of which he is the judge," so as to constitute legislative creation. We do not perceive in these provisions a legislative direction for the appointment of a clerk of the local court, even though the post be deemed unnecessary. The need is a matter for the discretion of the local authority. We find in the cited act no suggestion of a legislative determination of the need without regard to local conditions. See Rule 8:10-10 of this Court.
But it is urged that appellant was "in the employ" of Belleville when the Civil Service Act was adopted by the municipality, and so within the protection of the civil service tenure extended by R.S. 11:21-6 to "all officers, clerks and employees in the employ" of the municipality, except "such as may be appointed between the time of the filing of the petition for the adoption" of the Act "and the holding of
It was not designed by the cited provision to bring within the ambit of the statute persons claiming offices or positions which had no legal being, and thus to create offices and positions having no existence before. The act has no such sweep. Its aim was the security of tenure during good behavior for those of the particular class who were lawfully in the employ of the municipality, not those who had usurped authority in places having no legal sanction whatever. Validation was not in legislative contemplation. De jure offices and employments alone were in view. This interpretative principle has been consistently applied to this and similar statutes in the cases cited supra. E.g., Toomey v. McCaffrey; Van Brookhoven v. Kennedy, 125 N.J.L. 178 (Sup. Ct. 1940); affirmed, Id. 507 (E. & A. 1941); Moriarity v. Board of Education of Garfield, 133 N.J.L. 73 (Sup. Ct. 1945); affirmed, 134 N.J.L. 356 (E. & A. 1946); City of Orange v. Goldberg, supra.
It is the general rule that there cannot be a de facto officer without a de jure office. This is the principle that distinguishes the case of Shibla v. Township Committee of Wall Township, 136 N.J.L. 506 (Sup. Ct. 1948); affirmed, 137 N.J.L. 692 (E. & A. 1948). The appointment of one to an office or position having no legal being ordinarily gives no color of existence to the supposed office or position or color of authority to the appointee. Toomey v. McCaffrey, supra; United States v. Royer, 268 U.S. 394, 45 S.Ct. 519, 69 L.Ed. 1011 (1928); Buck v. City of Eureka, 109 Cal. 504, 42 Pac. 243 (1895); Snyder v. Hylan, 212 N.Y. 236, 106 N.E. 89 (1914). There is no reason of public policy for a deviation from the rule here. The local creative authority is exerciseable only by ordinance; this process is a condition prerequisite to the existence of an office or position.
The judgment is affirmed.
For affirmance — Justices CASE, HEHER, OLIPHANT, BURLING and ACKERSON — 5.
For reversal — Justice WACHENFELD — 1.