On appeal to Superior Court, Appellate Division, from Law Division, certified by Supreme Court on its own motion.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- None. The opinion of the court was delivered by William J. Brennan, Jr., J.
This appeal was taken by defendant City of Plainfield to the Appellate Division and was certified here of our own motion. The appeal is from a judgment entered in the Law Division of the Superior Court nullifying a resolution demoting plaintiff from captain to lieutenant in the fire department and directing the payment to plaintiff of captain's pay from the date of the resolution.
Defendant's fire department ordinance originally provided for four captains. In November 1950 there were four lieutenants in the fire department and three vacancies in the position of captain. Plaintiff and Lieutenant Dawson were ranked first and second, respectively, on a civil service promotional list of eligibles for captaincies. Theirs were the only names on the list, as the other lieutenants, Shattle and Freeman, had not taken the promotional examination.
On November 20, 1950 defendant amended the fire department ordinance to provide for five captaincies. On December 18 Dawson, Shattle and Freeman were respectively appointed second, third and fourth ranking captains.
On December 18 also the city adopted an ordinance creating a traffic and parking commission and a "Division of Parking Meters and Off-Street Parking Lots," to be known as the "Parking Division," and providing for a "Parking Division Superintendent." The ordinance further provided that
"The Parking Division Superintendent, when duly appointed, may hold the rank of Captain in the Fire Department and when holding such rank, shall receive the compensation provided by ordinance for a Captain in said Fire Department; under all other circumstances the Parking Division Superintendent shall receive such salary as the City, by ordinance, shall provide, but said salary shall not be greater than the salary of a Captain in the Fire Department."
On December 28, 1950 plaintiff was appointed "Parking Division Superintendent and Captain in the Fire Department" and the appointing resolution designated him for ranking purposes as "the fifth appointment as Captain."
The department of civil service questioned the appointment of a member of the fire department to the position of parking division superintendent without consideration of the promotional rights of members of the police department and on April 19, 1951, almost four months after plaintiff's appointment, formally advised the city that "the Department of Civil Service cannot accept the ordinance provisions for promoting a member of the Uniformed Fire Department to the position of Parking Division Superintendent under the administrative supervision of the Police Chief without considering the promotional rights of members of the Police Department as well." Thereupon, on July 2, 1951 the challenged resolution was adopted rescinding the resolution of December 28, 1950 which appointed the plaintiff parking division superintendent and captain in the fire department and directing him "to return to his position and duties as Lieutenant in the Fire Department." Subsequently, on September
4, 1951, the fire department ordinance was amended to reduce the number of captaincies from five to four; and on September 18, 1951 an ordinance was adopted abolishing the position of parking division superintendent.
The controlling question is whether plaintiff became a captain in the fire department by reason of the appointment made by the resolution of December 28, 1950. We think that he did. There is no merit in the city's argument that the resolution is to be read as attempting to make an appointment to a new combined position created by the traffic and parking commission ordinance so that the appointment was voidable except as the department of civil service pursuant to Rule 15 of the department established the classification of the combined position and approved plaintiff's qualifications to fill it. The position of captain in the fire department and the position of parking division superintendent were separately existing and separately created by different ordinances. A fifth position of captain in the fire department was provided for by the amendment of November 20, 1950 to the fire department ordinance. Only the position of parking division superintendent was created by the traffic and parking commission ordinance. That the latter did not create a combined position is plain from the provisions which, though authorizing the appointment of a fire captain as superintendent, also provided for the appointment of a person not a fire captain in the discretion ...