For the prosecutor, Walter C. Ellis.
For the defendant Joseph E. McGinley, Edward J. Gilhooly.
Before Justices Parker, Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. On July 22d, 1943, the Civil Service Commission set aside the action of the Board of Police Commissioners of the City of East Orange reducing the number of lieutenants in the local police department from three to two and establishing "the policy of requiring a sergeant or sergeants to regularly perform the duties of lieutenant on one eight-hour shift each day," and directed it "to make an appointment" from the register of eligibles to be certified
by the commission "to fill the existing vacancy in the rank and grade of lieutenant, in order that there may be at all times an officer of that rank available to perform the duties of lieutenant under the existing plan of organization" of the police force, "and as now defined and prescribed in the official rules and regulations of the department." The proceedings have been brought up for review by a writ of certiorari sued out by the municipality.
The asserted jurisdiction was invoked by the defendant McGinley, a local police sergeant who was first on a roster of eligibles promulgated by the Civil Service Commission on July 9th, 1942, for appointment to a lieutenancy vacated on the prior July 1st by the retirement of the incumbent on pension. McGinley qualified in an examination conducted by the commission on September 10th, 1941, pursuant to the request of the local chief of police. But there was no appointment to fill the vacancy. On January 18th, 1943, the Board of Police Commissioners adopted the challenged resolution reducing the number of lieutenants from three to two. It was therein recited that, "by reason of inductions into the military service," the police department had been "considerably reduced in number and may be subjected to further reductions," and that the action thus taken was "deemed proper for reasons of economy." The departmental personnel then numbered 104, reduced from 115, of whom 16 were superior officers. The normal complement therefore, over a number of years, had been 115. Thereupon, the sergeants rotated in the doing of the "desk duty" incident to the office of lieutenant, each serving for a continuous period of four weeks. This course was taken under a departmental rule (No. 199) providing that sergeants "shall familiarize themselves with the working of the police signal system and other duties of the lieutenant, so that they can properly and efficiently perform desk duty when so required."
During the prior period of twenty-five years, there had not been fewer than three lieutenants, and for some of the time there had been four. The lieutenants, sergeants and patrolmen all worked on three shifts of eight hours each. The rules assigned "desk duty" to the lieutenants; and a lieutenant was
"in charge of the desk" at the station house on each of the three shifts. Under the rules, in the absence of the chief and captain, the "desk lieutenant" has "charge and supervision" of the "entire police department" and is laden with "the duties of a captain." The sergeants have "immediate supervision of patrolmen on patrol duty, and of patrolmen assigned to special duty in their respective districts," and are under the duty of "constantly" patrolling their districts, "seeing each man on post as often as possible and enforcing the performance of duty." It has been the practice, and this seems to be the purport of rule 199, to assign a sergeant to temporary desk duty whenever a lieutenant was not available for such service. When the particular vacancy occurred, the defendant McGinley was assigned to desk duty as an acting lieutenant, and he functioned continuously in that capacity until the taking of the action in question.
The Civil Service Commission found that economy was not the motivating consideration for the resolution under review. It pointed to evidence that a patrolman had thereafter been promoted to a sergeancy; that "a number" of new patrolmen had been appointed, and that substantial bonuses had been granted to ...