For the prosecutors, Lord & Lord (William A. Lord).
For Maurice H. Caldwell, Director, Joseph F. Zeller and Edmond J. Dwyer.
For the Civil Service Commission, David T. Wilentz, Attorney-General, and Harry A. Walsh.
Before Justices Case, Donges and Colie.
The opinion of the court was delivered by
CASE, J. Prosecutors, chancemen of the City of Orange, seek to set aside the appointment, on December 26th, 1941, of Gordon F. Miller, John J. Dyer and Arthur L. Berke as patrolmen of the police department of that city on the ground that the named appointees were not then and had not been chancemen of the police department. The appointments were made from a list of eligibles certified to the Director of Public Safety by the Civil Service Commission of the state as the result of an open competitive examination which had been conducted by that commission.
It has been held that chancemen of the City of Orange are regular members of the police department, appointed for part time service, Albert v. Caldwell, 123 N.J.L. 266. That decision was rendered on a quite different issue, but it is reasonable to assume that if the chancemen are members of the police department on the question of tenure they are also on the question of promotion. And, on the principle of stare decisis, we hold that they are such members.
Further, a city ordinance adopted on January 9th, 1895, provided that "no appointments of policemen or members
of the police department shall be made of any person * * * unless he shall have been appointed a chanceman for at least six months prior to the application for appointment as a member of the police department, and shall have actually served the city as chanceman for three months." But on November 2d, 1937, following a referendum vote, the Civil Service Act became effective in the city. Such ordinances as were in conflict with that act were thereby superseded.
R.S. 11:22-34 (part of the Civil Service legislation) provides that "a vacancy in a position in the competitive class shall be filled, as far as practicable, by promotions from among persons holding positions in a lower grade in the department, office or institution in which the vacancy exists." The position of patrolman is in the competitive class. Therefore, the appointments should have been on a promotional basis from chancemen if that course was practicable. Examinations are essential to promotion in the competitive classes of the classified civil service. Under the provisions of the Civil Service Act, R.S. 11:22-34, "promotions shall be based upon merit, to be ascertained by examinations ...