For the relator, Leo S. Carney and Charles E. McCraith, Jr.
For the defendant, John H. Cooper.
Before Brogan, Chief Justice, and Justices Donges and Porter.
The opinion of the court was delivered by
DONGES, J. This case is before the court on an information in the nature of quo warranto, plea thereto, replication and stipulation of facts. The office involved is that of street commissioner of the town of Kearny.
It appears that this office was created by an ordinance adopted in 1900. In 1906 an amendment was adopted fixing a term of two years, a one-year term of office having been fixed by the original ordinance. On January 1st, 1908, one John Durkin was appointed street commissioner and every two years thereafter he was reappointed until January 1st, 1935, when the relator, Charles J. J. Chapman was appointed. He served one term of two years and on January 1st, 1937, John Durkin was again appointed and served until his death on October 21st, 1938.
At the general election in 1937, the voters of Kearny voted to adopt the provisions of the Civil Service act. In pursuance of this election, the governing body on June 22d, 1938, adopted an ordinance to effectuate the adoption of the Civil Service law. This ordinance referred to two schedules submitted by the Civil Service Commission, one containing a complete list of the then employes of the town, giving suggested titles for each employe, salary and department, the other being a schedule of all offices and positions. The ordinance provided: "The schedules heretofore referred to herein and recommended to this Council for adoption by the Commission * * * are hereby made part of this ordinance in their entirety the same as though specifically set forth herein, said schedules being filed with the Clerk of this Council coincident with the passing of this ordinance." The schedules were not published with the ordinance. The schedules set out the office of street commissioner, naming the then incumbent, the date of appointment, salary, title of position and proposed title of position, both of which latter were "street commissioner." This ordinance contained a provision repealing all ordinances or parts of ordinances inconsistent therewith.
As stated, Durkin died on October 21st, 1938, and on October 26th, 1938, the town council adopted a resolution
directing the town clerk to request the Civil Service Commission to conduct an examination for the purpose of certifying a list of those eligible to appointment. Such an examination was held on December 29th, 1938, and on April 12th, 1939, the Civil Service Commission certified the relator as eligible and he was the only veteran certified on the list. Under the provisions of the statute, he thus became entitled to appointment, unless, of course, certain other acts done, presently to be mentioned, were lawful.
The defendant, Harley S. Edwards, was a member of council. At a regular meeting of council on April 26th, 1939, he tendered his resignation, which was accepted, and immediately a majority of council adopted a resolution appointing him street commissioner. Defendant claims that the office of street commissioner is not within the purview of the Civil Service law and, further, that under the provisions of R.S. 11:27-11.1 he, as the holder of a Distinguished Service Cross, for military service in the World War, was entitled to appointment without participation in the examination and certification as the result of examination.
Relator applied to Chief Justice Brogan, by petition, for an order setting aside the appointment, under R.S. 11:25-4 et seq. The petition was dismissed, and the pending proceeding was instituted. ...