For the prosecutors, Lord & Lord (William A. Lord).
For the respondents, David T. Wilentz, Harry A. Walsh and Calvin S. Koch.
Before Brogan, Chief Justice, and Justices Case and Heher.
The opinion of the court was delivered by
CASE, J. The writ of certiorari brings up the record leading to and including a determination of the Civil Service Commission to hold an examination for patrolmen of the police department of the Town of Kearny, the same to be open to male residents of the Town of Kearny who had been such for a period of at least five years and who had also been citizens of the United States for a period of at least five years. The prosecutors are chancemen with whatever standing goes with that designation in connection with the Kearny police department. Their contention is that because of the provisions of the various ordinances of the Town of Kearny the examination should be a promotional one open only to men who have served at least three months as chancemen on the Kearny police force. Our study brings us to the conclusion that the writ should be dismissed. Our reasons follow:
The original police ordinance of the Town of Kearny, in so far as we are shown, was passed April 18th, 1899, and consisted, except for a short repealer of inconsistent ordinances, of a single section, namely:
"That a day and night police be established in the Town of Kearny, consisting of a Chief of Police, a Sergeant and twelve Patrolmen or Policemen to be appointed by the said Council as soon as may be after the passage of this Ordinance and to serve under such rules and regulations as the Council may from time to time adopt, provided, that no Policeman or Police Officer shall be removed except for neglect of duty, misbehavior, incompetency or inability to serve."
That was not a comprehensive ordinance. It did little
more than fix the number of the members of the force, classify them and provide against removal except for cause. On October 11th, 1905, the town council passed a supplement consisting of 73 numbered paragraphs designated "rules." Rules 62 to 72, inclusive, were beneath the title "Chancemen." The rules with respect to chancemen provided that no candidate should be enrolled as a chanceman until he should have established to the satisfaction of the police committee that for five years he had been a citizen of the United States and a resident of the Town of Kearny, that he was of good moral character, &c., and finally (rule 72) that "all applicants must serve at least three months as chanceman before being made a patrolman." It is quite clear, however, that the ordinance did not regard chancemen as members of the police "force." This is made manifest in many ways, only one of which need be cited. Rule 1 provided that "each and every member of the police force shall devote his whole time and attention to the business of the department and he is expressly prohibited from following any other calling, or being employed in any other business." That requirement laid upon members of the force clearly did not apply to chancemen. The employment of chancemen in police duties was desultory in the extreme as will presently be noted.
On February 28th, 1917, a further ordinance was passed (amending and supplementing the 1899 ordinance) fixing salaries of the chief of police, the captain of police, the lieutenant of police, the sergeant of police and of the patrolmen, and fixing the "pay" of chancemen on a per diem basis with a ratable part thereof for fractions of a day. On June 10th, 1925, the town council passed an ordinance revising the police department rules. The ordinance by its title is amendatory of a supplemental police ordinance adopted August 11th, 1905; but there appears to have been no ordinance passed on August 11th, 1905. It is apparent from the remaining portions of the title and from the subject-matter that the ordinance is amendatory of the October ...