
    LILLIAN C. MARTIN v. THE BOARD OF CHOSEN FREEHOLDERS AND ANNA A. HOSP.
    Submitted March 11, 1913
    Decided October 27, 1913.
    The matron of the Essex county penitentiary is the incumbent of an office.
    On certiorari reviewing resolution of board of freeholders.
    Before Justices Garrison, Swayze and Minturn.
    For the plaintiff, Alonzo Church.
    
    For the defendant, Benjamin F. Jones.
    
   The opinion of the court was delivered by

Minturn, J.

The question presented by the reasons in this case is whether the plaintiff is the holder of an office. She was elected matron of the Essex county penitentiary on December 7th, 1908, for a term of two years, and she was again elected for a like term on December 5th, 1910; her husband, Samuel C. Martin, having been elected warden by the board of freeholders at the same intervals.

The genera] authority for such action is found in 3 Comp. Stat., p. 2953, by which the board of freeholders is directed and empowered “to appoint and hire some fit person to be master of the workhouse,”, “and other-officers and servants if necessary.”

At the November election in 1910 Essex county adopted the provisions of the so-called Strong act, as well as the Civil Service act. On the first of January, 1912, the new1 board of freeholders duly elected Anna A. Hosp, the wife of Ferdinand J. Hosp, the warden of the penitentiary, as matron for one year to succeed this plaintiff, whose term of two years had then expired. On January 6th, 1913, the said Anna A. Hosp was re-elected matron for a term of two years, her term running concurrently with that of her husband, the warden who was also reappointed.

The writ of certiorari brings up for review the legality of the last resolution, the plaintiff as incumbent contending that she is protected by the provisions of the Civil Service act from removal, excepting as therein provided.

This court was called upon to deal with another phase of the question sub judice, in Hosp v. Martin, 54 Vroom 299, involving the warden of the penitentiary. The case was decided upon a demurrer to an information in the nature of quo wa/rrcmio. The learned Chief Justice there referred to the nature of an office, and considered it from the aspect of a statutory or a common law designation, and concluded that the wardenship of the penitentiary was an office. Section 6 of the Strong act (Pamph. L. 1902, p. 67), as amended by chapter 2577 of the laws of 1906, furnishes the authority for the board of freeholders to appoint the matron for the term of two years.

That section was held to be a constitutional enactment by the Court of Errors and Appeals in Paterson v. Close, 55 Vroom 319.

The conspicuous fact in the case is the matron is-elected by the board of freeholders in the,same manner as the warden, and both are elected for definite terms. If for the reasons advanced in Hosp v. Martin, supra, the warden is thereby constituted a public officer by parity of reasoning, the matron is in her sphere equally important, and occupies “a place in a governmental system created or recognized by the law of the state, which either directly or by delegated authority assigns to the incumbent thereof, the continuous performance of certain permanent public duties.” In the rules governing the institution she is designated as the “head of the female department of the penitentiary, and shall have charge of the prisoners and property therein.” Subject to the authority of the stated committee, her authority upon the female side of the prison seems to be plenary and within her prescribed sphere is practically upon a par with that exercised by the warden in the institution generally.

Her term of office begins with his, and the practice seems to be, and with apparent reason and propriety, for the board to elect the wife of the warden as matron, at the time of the warden's election, and for a term of office coincident with his. The importance of the segregation of female inmates in penal institutions, in the legislative purview, is manifested by the trend of legislation upon the subject.

In 1910 an act was passed providing for the appointment of matrons in the county jails and defining their powers and duties. Pamph. L. 1910, p. 155. In 1911 the legislature dealt directly with the segregation of female from male prisoners m county jails and penitentiaries, and thus emphasized and enjoined from the viewpoint of legislative public policy, a condition of prison discipline and segregation requiring for the welfare and reform of male and female inmates alike, a general control and supervisory power of management which generally accompanies an office, as distinguished from an ordinary occupation or employment; and which may be characterized and differentiated in the language of Fredericks v. Board of Health, 53 Vroom 200, as the “continuous performance of certain public duties.”

In our judgment, therefore, the matron of the penitentiary holds an office, and cannot be removed therefrom by certiorari. Bumsted v. Blair, 44 Vroom 378.

Although this difficulty is now remediable under section 23 of the Hew Practice act, we are unable to perceive how an amendment which may be thus ordered to cover the exigency will in fact meet the situation. An amendment of the proceedings from certiorari to quo warranto cannot be of any efficacy to the plaintiff, since she is in possession of the office, and a judgment of ouster in her case would therefore be both useless and profitless. Eor these reasons a dismissal of the writ of certiorari is necessary and will be ordered.  