Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
[39 NJSuper Page 369] Disaffected because the Acting City Manager of Clifton passed over their names on the certified list of policemen eligible for appointment to the position of sergeant, plaintiff policemen appealed to the Civil
Service Commission. The Commission sustained the action taken and dismissed the appeals. Plaintiffs thereupon took an appeal to this court pursuant to R.R. 4:88-8.
On February 14, 1955 John L. Fitzgerald, City Manager of Clifton, requested the Department of Civil Service to certify names of eligibles for appointment as sergeants in the municipal police department, two such positions being open. The Department complied on February 16, certifying the following -- all of them veterans -- in the order of the grades they had achieved in a previous promotional examination:
Ravmond G. De Luca 79.097
Philip A. Calderaro 79.070
Fitzgerald was away on a Florida vacation from February 16 to March 17, 1955. During this period the city engineer and director of public works, William Holster, was serving as acting city manager. The Municipal Council of Clifton had appointed him to that office by resolution on February 1 preceding. On February 18 Holster appointed Calderaro and Hornby, the third and fourth men on the eligible list, as sergeants, the appointments to become effective on March 1, 1955. Plaintiffs at once filed a verified petition with the Civil Service Commission, pursuant to R.S. 11:25-1, protesting that their names had been by-passed and claiming that the appointments violated the provisions of N.J.S.A. 11:27-4, were invalid as an arbitrary and discriminatory abuse of discretion by Holster and, further, were invalid because he had no power or authority in the premises. The Commission held a hearing and on June 7, 1955 decided that the provisions of the Civil Service Act had not been violated.
In their appeal from the Commission decision sustaining the action taken by the acting city manager, plaintiffs raise several legal issues which we shall consider in the order of their presentation. Only the last two directly affect the administration of the civil service laws.
The first ground of appeal is that there could be no valid appointment to a non-existent office or position. Here plaintiffs argue that the Home Rule Act requires that all non-statutory municipal offices be created by ordinance; without a creative ordinance there can be no office, and without an office there can be no vacancy, and hence no appointment. Plaintiffs allege that the two positions of sergeant were never created by ordinance. There may be merit in the contention; it is true that a municipal office or position, if not created by statute, can come into being only by ordinance of the governing body of the municipality. Handlon v. Town of Belleville , 4 N.J. 99, 108 (1950); Jersey City v. Department of Civil Service , 7 N.J. 509, 524 (1951), affirming 10 N.J. Super. 140 (App. Div. 1950).
The next ground of appeal is that a de facto appointing authority cannot appoint a de jure officer, so that the appointments in question are invalid. This is a correct statement of the existing law. Von Nieda v. Bennett , 117 N.J.L. 231 (E. & A. 1936), wherein the views first suggested by Chief Justice Beasley in Jersey City v. Erwin , 59 N.J.L. 282 (Sup. Ct. 1896), reversed sub nom. Erwin v. Jersey City , 60 N.J.L. 141 (E. & A. 1897), were reinstated, thereby directly overruling the holding in Brinkerhoff v. Jersey City , 64 N.J.L. 225 (E. & A. 1900), to the contrary, along with the line of cases which followed it. And see Annotation , 106 A.L.R. 1324.
The argument pursued by plaintiffs under this head of their appeal runs as follows. The Municipal Manager Act, R.S. 40:79-1 et seq. , provides that during "the absence or disability" of the municipal manager the municipal council shall appoint "a properly qualified" person to exercise the powers and perform the duties of the office. R.S. 40:82-6. R.S. 40:82-4 sets forth the duties of a municipal manager, subsection (d) providing that the manager shall appoint and remove all department heads and all other officers, subordinates and assistants for whose ...