On certified appeal from the Appellate Division of the Superior Court.
For affirmance -- Justices Heher, Oliphant, Burling and Jacobs. For remandment -- Justice Wachenfeld. The opinion of the court was delivered by Heher, J. Jacobs, J., concurring in result.
[22 NJ Page 307] We certified for appeal the judgment of the Appellate Division of the Superior Court affirming the determination
of the State Civil Service Commission that the Acting City Manager of Clifton had not transcended the Civil Service Act in the appointment of Philip A. Calderaro and Richard Hornby as sergeants in the local police department.
On February 14, 1955 the City Manager of Clifton, John L. Fitzgerald, called upon the Civil Service Commission to certify eligibles for appointment to two supposed vacancies in the office of police sergeant; on February 16 ensuing the Commission certified the names of the plaintiffs Swede and De Luca, and Calderaro and Hornby, all war veterans who had qualified in that order in a competitive promotional test of merit and fitness pursuant to R.S. 11:21-3; and two days later the Acting City Manager, William Holster, appointed No. 3 and No. 4 on the eligible list, Calderaro and Hornby, respectively, to fill the vacancies, effective March 1 thereafter.
Claiming a preferential right to appointment under R.S. 11:27-4, as amended by L. 1952, c. 48, Swede, No. 1, and De Luca, No. 2, appealed to the Civil Service Commission under R.S. 11:25-1, by petition filed February 23 following. But the appellants also, as taxpayers, on March 25 ensuing, brought a proceeding in lieu of prerogative writ in the Superior Court, joined by another taxpayer, one Sahaydak, Docket L-6331-54, challenging the legal existence of the offices to which the appointments were made, for want of a creative local ordinance under R.S. 40:48-1, and alleging also that the "purported promotional appointments were made contrary" to R.S. 11:27-4, in that the appointees "were not first on the certified list"; and that the resolution of the local governing body purporting to designate Holster as acting city manager "during the absence of John L. Fitzgerald, City Manager," "was not * * * in accordance with" R.S. 40:82-6, and Holster was not a "properly qualified" person for this local function within the intendment of the Municipal Manager Act, R.S. 40:79-1 et seq., and "could not be appointed" as such, "due to the incompatibility of his position or office as City Engineer and the
office or position of Acting City Manager," and demanding judgment declaring the appointments of Calderaro and Hornby null and void, and the resolution designating the acting city manager also "null and void, or ineffectual only insofar as it purports to constitute the basis for the acts of Holster in promoting defendants."
This latter proceeding invoking the extraordinary judicial power exercisable by means of the old prerogative writs, now to be had of right under the 1947 Constitution, was not prosecuted and is still pending. The plaintiffs chose to pursue the administrative review afforded by the appeal to the Civil Service Commission in accordance with R.S. 11:25-1. And the selfsame issues were there raised. But the Commission ruled that the existence of the offices in question was an issue beyond its jurisdiction. The plaintiffs' claim of preference to appointment under the Civil Service Act was dismissed as ill-founded; the appointments were deemed to be within the authority conferred by R.S. 11:27-6, found to be unaffected by amendments of related sections of the act. And it was held that Holster, as acting city manager, was lawfully endowed with the power of appointment, and there had been no wrongful interference with the exercise of the function. Of this, more hereafter. The "action taken by the Acting City Manager" was "sustained," and the appeals dismissed. The Commission remarked: "It is difficult to comprehend the conclusion of counsel for the appellants that, in the event that it is decided that the appellants were entitled to appointment, then their names should be certified for appointment, despite the question relating to the creation and legal existence of the office."
The Appellate Division affirmed the judgment. 39 N.J. Super. 366 (1956). The holding was that the "existence of a position" is a question of "fact and law to be determined by the Law Division in a proceeding in lieu of prerogative writ," and so also the "question of whether Holster was properly appointed to and qualified to hold the office of acting city manager, which goes to the issue of whether he
was a de jure officer who could make a valid appointment." The argument that the veterans' preferences accorded by R.S. 11:27-4, as amended by L. 1952, c. 48, now applies also to promotions of the particular class was overruled; and it was found that there was no ...