On appeal from the Superior Court, Appellate Division, whose opinion is reported in 13 N.J. Super. 247, certified on the plaintiff's motion.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Vanderbilt, C.J.
[8 NJ Page 425] The facts of the case have been stipulated. The chief of the Irvington Fire Department
having resigned effective as of May 15, 1950, Commissioner Balentine, then Director of Public Safety, on May 16, 1950, appointed Andrew J. Zahn to the position. At 8:50 that morning the plaintiff took the oath of office and entered on the performance of his duties, without, however, having pursued either of the current modes of qualifying for a promotion, i.e., an examination as required by R.S. 11:4-2 or an authorization from the President of the Department of Civil Service waiving such examination under Rule 24 of the Civil Service Commission.
Commissioner Balentine's term of office expired at noon on May 16, 1950, and he was succeeded as Director of Public Safety by Commissioner Hausmann. On that afternoon Director Hausmann rescinded the appointment of the plaintiff and wrote the Civil Service Commission requesting that an examination be called to fill the vacant position. At the same time Director Hausmann designated Harry V. Zigenfus as acting fire chief with the approval of the Civil Service Commission pending a promotional examination. The plaintiff protested his removal and demanded an authorization of his promotion under Rule 24 from the President of the Civil Service Commission. In an opinion letter dated June 7, 1950, the President of the Civil Service Commission held:
"No valid appointment can be made under Rule 24 until the approval of the President is given. This approval was definitely refused and a promotional examination has been directed.
The question whether I have exercised my authority wisely in the Irvington case is one to which I have a complete answer. This appointment by Director Balentine was a 'midnight appointment.' That is to say, it was attempted in the closing hours of his term of office. Since the day when Thomas Jefferson succeeded John Adams as President of the United States, 'midnight appointments' have been denounced by all who believe in sound government. If I have in this instance exercised the small powers vested in me by the law to thwart a 'midnight appointment,' I have made some contribution to good government."
From this determination of the President of the Civil Service Commission the plaintiff appealed to the Appellate Division
We granted the plaintiff's petition for certification. The plaintiff's sole point on the appeal is that the President of the Civil Service Commission abused his discretion and acted arbitrarily and unreasonably in refusing to authorize the plaintiff's promotion without examination. The plaintiff ignores the fact that examinations constitute the normal prerequisite for appointment and promotion to a position in the civil service, R.S. 11:4-2:
"Appointments to and promotions in the civil service of the state shall be made only according to merit and fitness, to be ascertained, as far as practicable, by examinations, competitive, if practicable. No person shall be * * * promoted * * * in any manner or by any means other than those prescribed by this subtitle."
and that the plaintiff has not taken such a promotional examination thereunder. Instead the plaintiff seeks relief under Rule 24 of the Civil ...