For the relator Civil Service Commission of New Jersey, David T. Wilentz, Attorney-General, and Harry A. Walsh, Assistant Attorney-General.
For the relator Allan H. Swan, Samuel B. Feld.
For Chester H. Bellows, amicus curice, Jerome C. Eisenberg.
For the respondent, William F. Gorman (William F. Gorman, of counsel).
Before Brogan, Chief Justice, and Justices Parker and Porter.
[128 NJL Page 504] BROGAN, CHIEF JUSTICE. This case is before us on an alternative writ of mandamus allowed on the relation of the Civil Service Commission of New Jersey and Allan H. Swan
(the real party in interest) directed to Raleigh S. Rife, Director of the Department of Revenue and Finance of the Town of Nutley, New Jersey. The latter filed a return to the writ. The relators have demurred. The issue is whether or not Mr. Swan, a disabled veteran, is entitled to the post of collector of delinquent accounts in the Department of Revenue and Finance of Nutley. That municipality has adopted our Civil Service Act (N.J.S.A. 11:3-1, et seq.).
It appears that the Civil Service Commission was requested by Director Rife to hold a competitive examination to determine eligibles for appointment for the said post of Collector "according to the specifications and adoption of the Civil Service." Accordingly the Civil Service Commission conducted an examination. The relator Swan passed the examination with a gross rating of 75.39 per cent. The eligibles certified by the Civil Service Commission after the examination were Messrs. Swan, Dolan and Bellows, in the order named. Swan was placed first on the list because he is a disabled veteran -- although the others certified had received a higher mark in the examination. Mr. Rife, the appointing power, did not appoint the disabled veteran but instead appointed Mr. Bellows, a non-veteran. Under our law a veteran with a record of disability incurred in the line of duty is entitled to certain rights and preferences (see N.J.S.A. 11:27-3 to 11:27-5).
Prior to the appointment of Bellows and on June 17th, 1941, Mr. Rife was cited by the Civil Service Commission to show cause why the veteran certified as eligible was not appointed (N.J.S.A. 11:27-5, as amended Pamph. L. 1938, ch. 381, p. 952, § 4). After the hearing the Commission concluded that Mr. Rife had not shown good cause for not appointing Swan and on July 1st, 1941, ordered his appointment. Rife refused to obey the order of the Civil Service Commission, appointed Bellows on July 3d, 1941, and on September 11th, in reply to inquiry from the Attorney-General, wrote a letter stating his reason for refusing to honor the order of the Commission. He further said that he had appointed "another successful candidate * * * for the vacancy; he has taken the oath of office, and is presently
under leave of absence." On this fact showing we allowed an alternative mandamus.
Mr. Rife, in his return to the writ, admits that he requested the Civil Service Commission to hold the competitive examination to determine eligibles for appointment to the vacant post; that the Civil Service Commission did hold such examination; that the names of the three eligibles were certified; that Mr. Swan was the only veteran among them; that he did not appoint Swan but rather Bellows who, he says, took the oath of office on July 3d, 1941, and ...