Conford, Haneman and Ewart. The opinion of the court was delivered by Ewart, J.s.c. (temporarily assigned).
By this action in lieu of prerogative writ plaintiffs attack the action of Essex County Park Commission in having removed them, without charges or hearing, as probationary patrolmen of the Essex County Park Commission. From a judgment in favor of plaintiffs, defendants appeal.
Essex County Park Commission is a body politic and corporate, with power to sue and be sued, use a common seal, and make and adopt by-laws. It was created by L. 1895, c. 91 (R. S. 40:37-99). Its officers and employees are not included in the classified civil service, (R.S. 11:22-2). By L. 1895, c. 91, as amended L. 1906, c. 102 (R.S. 40:37-154), the Legislature delegated to the commission the following powers:
"The commission may appoint and establish a constabulary, * * * and may organize the constabulary into a police system to be known as 'the park police of the county of * * *'.
The commission may establish proper rules and regulations for the appointment, control and management of the members of the constabulary, and for the securing of proper discipline and efficiency among the members thereof."
By L. 1928, c. 233, as amended L. 1946, c. 27 (N.J.S.A. 40:37-156), the Legislature provided that:
"No member or officer of the police force or police department shall be removed except after trial and conviction by the Park Commission, or a member or members thereof, of the violation of proper rules and regulations for the appointment, control and management of members of such force or department and for the securing of proper discipline and efficiency among the members thereof."
There is no statutory authority in express words for the park commission to appoint probationary members of its constabulary or police department.
Pursuant to the delegation of authority contained in R.S. 40:37-154, the commission did establish general rules and
regulations governing the park police (Exhibit D-2), and in addition thereto on June 17, 1954 the commission adopted a resolution:
"* * * That any person qualifying for a position as a patrolman on the Park Police of the County of Essex be employed for a probationary period of one year, during which time, upon recommendation of the Chief to the Board, the man's services may be discontinued, and at the end of the probationary period appointments to the force would be made only upon the report of the Chief that the individual had qualified."
Each of the plaintiffs filed written applications with the commission for employment as patrolmen in the police department, Cammarata under date of February 4, ...