For the prosecutors, Eugene A. Liotta.
For the defendant Civil Service Commission, David T. Wilentz, Attorney-General (Harry A. Walsh, of counsel).
For the defendant Louis Rizzo, Francis P. Meehan.
For all other defendants, Eugene F. Mainzer.
Before Justices Case, Donges and Heher.
The opinion of the court was delivered by
HEHER, J. At the general election held in November, 1936, the electors of the City of Rahway accepted the provisions of the Civil Service Act of 1908, as amended and supplemented. R.S. 1937, 11:1-1, et seq. Prosecutors were then, and continued thereafter to be, chancemen designated under a local ordinance adopted in 1913, providing for the appointment of "suitable persons not exceeding eight in number" (increased to twelve by an amendment made in 1929) "to be known as chancemen," with "all the powers" and "duties of regular patrolmen when called upon" for service "by the Mayor or Chief of Police," and entitled to "receive while actually on duty the same compensation as regular patrolmen," and directing the local authority, "when appointing regular patrolmen," to "select them from the list of chancemen." The mayor was also thereby empowered to appoint "such special policemen as he may deem necessary for the preservation of the peace and good order of the City," who were likewise entrusted with all the powers and duties of "the regular patrolmen," at compensation to be "determined by the Common Council."
On April 28th, 1938, the defendant Civil Service Commission, pursuant to the request of the mayor made on February 16th, preceding, and after due public notice, held an examination for the "position" of "patrolmen" in the police department, "open to male citizens, resident" of the municipality for "at least two years," having a common school education, at least, and being not less than twenty-one nor more than thirty-five years of age, and thereafter certified an eligible list to the appointing power. On the prior April 1st, prosecutors protested the holding of the scheduled test on the ground that patrolmen should be appointed from "the now existing list of chancemen," some of whom were barred by age from taking the examination, but the Commission, on April 7th,
1938, held that the cited statute did not so provide, and that the chancemen were eligible for such examination only if they met the prescribed qualifications. Nothing further was done, except that on February 3d, 1940, in a proceeding instituted by prosecutors in this court, they were classified as "regular members of the police department, holding the position of chancemen." On September 15th, 1939, the defendant Rizzo, who was not a chanceman, was appointed patrolman from the register of eligibles thus certified by the Civil Service Commission; and on May 17th, 1940, this writ was sued out to review the proceedings.
It is now maintained that, in virtue of the cited local ordinance and R.S. 1937, 11:22-34, "the appointment of patrolmen is limited to chancemen;" and the action of the Civil Service Commission in holding "an open competitive examination for position of patrolman" before "the present list of chancemen was exhausted," and the appointment of Rizzo from the resulting eligible list, were therefore unlawful. It is said that, "when more members" of the police department "are needed, it is the duty of the Civil Service Commission to hold an examination, not for patrolmen but for chancemen, the lowest grade of officers in the department, and from which class promotions can be made to the office of patrolmen."
In Albert v. Caldwell, 123 N.J.L. 266, our court of last resort ruled that, under similar municipal action, the "position" of "chanceman is a regular position in the department to the same extent as the other positions," and that the occupants of such "are regular members of the department" appointed for part time service, and "entitled to tenure and to keep their positions ...