(dissenting). I am in agreement with the views expressed in the opinion of Judge Labrecque for the Appellate Division, 14 N. J. Super. 128 (1962). However, in view of the majority and concurring opinions in this court, I think some additional comment is warranted.
The majority recognizes that the duties performed by court attendants are different from those of jail keepers. It is undisputed that court attendants and jail keepers are in the county civil service. B. S. 11:21-4 provides that in the county civil service “no person shall be * * * transferred * * * in any other manner or by any means other than those prescribed by” the provisions of subtitle 3. The only provision relating to transfers under this subtitle is B. S. 11:22-8, which has to do with transfers at the employee’s own request. This provision is clearly not applicable to the present case. The term “transferred” in B. S. 11:21-4 is not qualified in any manner. Nevertheless, the majority and concurring opinions in effect read into it the qualification, “permanent,” and infer that there is no implied prohibition against temporary transfers. Upon this premise they base the applicability of Civil Service Rule 53'(1) (e) to the temporary transfer of county civil service personnel. To my mind, the unqualified term “transferred” refers to both temporary and permanent changes of position and no rule of the Civil Service Commission can alter the meaning of the statute. See Abelson's Inc. v. New Jersey State Board of Optometrists, 5 N. J. 412, 425 (1950). According to the majority’s view, “transferred” in B. S. 11:21-4 is limited to permanent transfers, thus leaving a “statutory void” with respect to temporary transfers, which void is said to be filled by Rule 53(1) (e) of the Civil Service Rules. If there is such a void it is amply filled by B. S. 11:22-12, subtitle 3, which forbids the assignment of any person “to perform *330duties other than those properly pex'taining to the position which he legally holds.” In view of this latter statute, it seems to me that court attendants cannot be assigned temporarily to perform any duties other than those of a court attendant.
The position of court attendant was created by the Legislature under N. J. 8. 2A :ll-32, which provides:
“The sheriff of each county of this state shall appoint, from the electors of bis county, such persons, and as many thereof, as may be necessary to attend upon the law division of the superior court and the county court in his county and to perform the duties required to be performed by constables of the respective counties summoned to attend such courts.”
Whenever the Legislature intended to enlarge the duties of court attendants, or to assign court attendants to perform ' unrelated duties, it has expressly so provided. Thus, N. J. S. 2A.T54-3 empowers court attendants "to act as officers for the detection, apprehension, arrest and conviction of offenders against the law.” N. J. 8. 2A:ll-38 directs the sheriff in counties of the first class to assign one or more court attendants to operate elevators used for the transportation of prisoners. And, N. J. 8. 2A:ll-37 authorizes the assignment judge in a county of the first class, where no librarian has been appointed for the county law library, to designate “a competent court officer, who shall, in addition to his other duties, attend the library,” for which service he may be paid additional compensation by the county. Therefore, it seems clear to me that if the Legislature intended that court attendants might be assigned to perform the functions of jail keepers, it would have specifically said so. But, nowhere in our statutes is there any such provision. Indeed, in the 1962 session of the Legislature, Assembly Bill No. ’US'?, passed by both houses, would have permitted the sheriff in certain counties, including Bergen County, to assign "civil service employees, whether classified as court attendants, jail keepers or county correction officers interchangeably to duty with the *331courts or in the jail or jails as the demands of the sheriff’s responsibilities may dictate.” However, Governor Hughes vetoed this bill and it did not become law.1
*332I would, affirm the judgment of the Appellate Division.
Francis and Hall, JJ., concurring in result.
For reversal and remandment — Justices Jacobs, Francis, Hall, Schettino and Haneman — 5.
For affirmance — Justice Proctor — 1.
In his message accompanying the return of the bill without his approval to the Legislature, Governor Hughes said:
“This legislation was developed as a result of the decision in Caldaro v. Ferber, 74 N. J. Super. 128, decided on May 4th of this year. In this case, the Appellate Division of the Superior Court ruled that existing statutes did not permit the Sheriff of Bergen County to employ court attendants and county jail personnel on an interchangeable basis. In so ruling, the Court discussed the differences between these positions:
‘That the duties of court attendants differ substantially from those of jail keepers, appears clear. Generally, court attendants are present for the purpose of preserving order in the court, taking charge of the jury, and other work incidental to the trial of cases. By usage, their duties are said to be well defined and generally known and understood. Sawyer v. Camden County, 122 N. J. L. 119, 122 (E. & A. 1939). Their hours of work are fixed by the sheriff, they being akin to a normal working day when courts are in session. In the case sub judice the manual promulgated by defendant, which sets forth the rules and regulations governing court attendants, provides that the regular-hours of service shall be from 9 a. m. to 4 p. m. from Monday to Friday, inclusive, and from 9 A. m. to 12 noon on Saturday. It also provides that no court attendant shall leave the court house without securing permission from his superior officer. The latter regulation is in recognition of the ministerial function performed by constables attending upon the courts. Cox v. Passaic Common Pleas, supra, at p. 329.
By contrast, a jail keeper has been defined in the Civil Service specifications as one who: “Under direction, during an assigned tour or duty, guards inmates and assists them toward rehabilitation; does related work as required.” According to a manual prepared for the use of jail keepers by defendant, they are required to work in three shifts, which encompass a period of 24 hours a day. * * *
The office of jail keeper was one well-known to the common law. Bownes v. Meehan, 45 N. J. L. 189, 193 (Sup. Ct. 1883). No case has been called to our attention in which the duties of court attendant and jail keeper were regarded as equivalent. On the contrary, the positions have been separately referred to in a number of legislative enactments.’
I believe that this description by the Court adequately explains the reasons for my disapproving this legislation. It would be clearly inequitable to compel an employee who was hired to perform the duties of a particular position, for which position he was required to meet certain standards, to perform responsibilities totally unlike *332those for which he was hired and for which he might have neither the aptitude nor the qualifications. If it is necessary for county government to employ personnel to carry out the functions of court attendant and county jail personnel, then a position providing for such employment should be established with entrance and training requirements that would qualify the holder of such a position to carry out his duties in a competent and responsible manner.”