On application for a writ of certiorari.
For the prosecutor, Wilbur J. Bernard.
For the respondents, William Newman (John W. Ockford, of counsel).
For the Civil Service Commission, David T. Wilentz, Attorney-General.
Before Justices Bodine, Perskie and Porter.
The opinion of the court was delivered by
PORTER, J. The prosecutor applies for a writ of certiorari to review the action of the respondents, the Director of Public Safety of the Town of Irvington and the Civil Service Commission of the State, concerning the appointment of a deputy chief of the Fire Department.
The facts are that the Town of Irvington is governed under the commission form, N.J.S.A. 40:72, et seq., and is subject to the Civil Service Act, having adopted its provisions, N.J.S.A. 11:19-2. The Director of Public Safety was in charge of the Fire Department. There were two vacancies in the position of deputy chief in that department and at the request of the director the Civil Service Commission held a promotional examination for the position. It certified the result of the examination and because there were two appointments to be made certified the first four names on the eligible list. It did this under its rule 31 which provides that "if there be more than one vacancy, there shall be certified to the appointing authority the names of as many persons as there are vacancies to be filled and two additional names."
On April 30th, 1941, the director made the two appointments simultaneously from the certified list which action was approved by the Civil Service Commission.
The appointees were Walter H. Kollmar and William S. Holleran. The former was first and the latter fourth on the list. The prosecutor, Harry V. Zigenfus, was second on the list and the only veteran of the World War among the four certified.
The Civil Service Law gives preference to veterans for appointment, N.J.S.A. 11:27, et seq. In promotions in the classified service, however, the only preference which a veteran has is, if he "shall receive the highest certification from among those qualified," N.J.S.A. 11:27-6.
It is the contention of the prosecutor that he should have been appointed instead of Mr. Holleran because when Mr. Kollmar, first on the list, was appointed he then having been second on the list became first and being a veteran had a preferential right under the statute, supra. In other words under these circumstances a question is raised as to whether or not there was not a circumvention of the statute by ...