For the prosecutor, Wilbur J. Bernard.
For the defendants, David T. Wilentz, William Newman and Harry A. Walsh.
Before Justices Case, Donges and Colie.
The opinion of the court was delivered by
DONGES, J. This writ brings up for review the action of the Director of Public Safety of the Town of Irvington in promoting the defendant Holleran from captain to deputy chief of the fire department and the action of the Civil Service Commission in accepting and recording said appointment.
There being two vacancies in the offices of deputy chiefs, the Civil Service Commission, at the request of the Director of Public Safety, conducted a competitive promotional examination. All captains in the department were eligible but only four of them took the examination, finishing in the following order: Walter H. Kollmar, 92.85; Harry V. Zigenfus, the prosecutor, 91.45; Lawrence B. Kithcart, 90.34, and William S. Holleran, 86.07. These four names were certified to the appointing authority and on April 30th, 1941, the director appointed Kollmar, the first on the list, and Holleran, the fourth on the list, which appointments were recorded by the commission.
The prosecutor, Zigenfus, who stood second on the list, was the only one of the four who had a veteran's rating and he claims that his rights under R.S. 11:27-6 were violated by the appointment of Holleran. That section provides:
"Nothing contained in sections 11:27-2 to 11:27-5 of this Title shall apply to promotions; provided, however, that whenever any examination for promotions be held and any veteran shall receive the highest certification from among those qualified, before such appointive power shall appoint for promotion any non-veteran, such appointive power shall show cause before the Civil Service Commission why such veteran should not receive such promotion."
There was no effort to show cause why prosecutor was not selected for the promotion.
The position of the defendants is that when there is more than one vacancy, a list of eligibles is submitted containing two more names than there are vacancies, and the appointing power may then make his selections regardless of position on the list, and that prosecutor would be able to claim the benefit of the quoted statute only if he were first on the list
resulting from the examination. It is their contention that the appointments ...