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Belfer v. Borrella

Decided: December 21, 1949.

JACOB J. BELFER, PLAINTIFF,
v.
D. DONALD BORRELLA, DEFENDANT



Smalley, J.s.c.

Smalley

This matter in the first instance comes on upon information in the nature of a quo warranto filed by the plaintiff, to dispute the title of defendant Borrella in and to the position of Police and Fire Surgeon of the City of Trenton.

The action was originated in the then New Jersey Supreme Court on May 26, 1948, and because of factual questions to be determined, by order dated July 7, 1948, the matter was referred to me in the then Mercer Circuit for a determination of the issues of fact. Thereafter the matter was brought before the Superior Court of New Jersey, Appellate Division, and referred on October 11, 1949, to this Court for a determination of both law and fact.

Counsel have by stipulation together with depositions submitted the matter and have now filed their briefs.

The Civil Service Commission was requested to hold a competitive examination to determine eligibles for appointment to the office of Police and Fire Surgeon of the City of Trenton. The Commission listed an announcement of said examination in its Bulletin with announced closing date for filing application for this examination, said date being September 15, 1947. The announcement Bulletin of the Civil Service Commission which listed the announced closing date for filing applications for the particular examination contained general information and instructions as follows:

"A disabled veteran is a veteran receiving or entitled to receive compensation for service-connected disability from World War service. Proof of such disability must be established with the Commission on or before the announced closing date of the examination. If an applicant has a claim pending before the Veterans Administration at the time of filing for an examination, he should specifically indicate this fact on the application blank, Item No. 16. If the claim for 10% or more disability is granted, the applicant must submit proof to the Civil Service Commission before the employment list is promulgated in order to obtain disabled veterans preference."

Although it is unnecessary to this decision, I take the above quoted instruction to be a promulgation entirely consonant with R.S. 11:27-1 (infra) and one which was designed to

relieve a difficult situation which existed, that of the unavoidable delays which the veteran encountered at the agency where he was to establish his claim for disability.

Since the purpose of Civil Service is "to provide a modern personnel system for positions in the classified service," (R.S. 11:4-1), to this end the Civil Service Commission can exercise not only such authority as is legally conferred by express provisions of law but also "such as is by fair implication and intendment incident to and included in the authority expressly conferred for the purpose of carrying out and accomplishing the objects for which the commission was created." (City of Newark v. Civil Service Commission , 115 N.J.L. 26.)

Both the plaintiff and the defendant were applicants for this office and filed for the aforesaid examination. Plaintiff's application stated that he was a disabled veteran; defendant's application, entered September 15, 1947, had no such notation. I find as a fact then that defendant, having failed to state a claim pending, could not avail himself of the foregoing.

However, shortly thereafter it was noted by another on defendant's application that he had a claim pending with the Veterans' Administration for disability, the nature of said disability being stated. On January 16, 1948, defendant was notified that the Veterans' Administration had awarded him a disability, retroactive from September 29, 1947. On February 3, 1948, the examination was held and the gradings were promulgated on April 16, 1948, with the final result that defendant placed highest on the examination and he was appointed to the office now in dispute.

Plaintiff contends that he was the only applicant who was a "veteran with a record of disability incurred in line of duty" and therefore his name should have been placed at the top of the employment list pursuant to the statutes. He bases his contention upon R.S. 11:27-1. The real question raised is whether a certain section of this statute sets forth a requirement which constitutes a condition precedent to be met by Civil Service ...


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