Goldmann, Foley and Barrett. The opinion of the court was delivered by Goldmann, S.j.a.d.
Plaintiff appeals from a Law Division judgment granting the motion of defendants Kiss and Union Township to dismiss the complaint for failure to state a claim upon which relief could be granted.
The first count of the complaint provides an outline of the factual background of the action. We have fleshed out its bare recitals by exercising our original jurisdiction, R.R. 1:5-4 and 2:5, and calling upon the parties to provide us with all record material pertaining to the question at issue, including correspondence, notifications, intra-departmental memoranda, investigation reports, etc. Plaintiff and defendants have fully cooperated in supplementing the record, reflected in the recital which follows.
Plaintiff is a disabled veteran and a resident and taxpayer of the Township of Union which, since 1929, has operated under civil service. On October 13, 1959 the township committee passed a resolution purportedly creating the position of Assistant Street and Sewer Superintendent (hereinafter Assistant Superintendent). (Although the parties speak of this resolution as having created the position, it is settled law that under R.S. 40:48-1 a municipal office or position, if not created by statute, can come into being only by local ordinance. Handlon v. Town
of Belleville , 4 N.J. 99, 108, 16 A.L.R. 2 d 1118 (1950); Jersey City v. Department of Civil Service , 7 N.J. 509, 524 (1951).) The township committee on the same date passed a second resolution reciting the creation of the position of Assistant Superintendent, and that one Falcetano had since April 23, 1958 held a temporary appointment as Acting Street and Sewer Superintendent; appointing him Acting Assistant Superintendent, effective October 16, 1959, and resolving that application be made to defendant Civil Service Department to hold an examination for that position. Such an examination was subsequently requested. On December 22, 1959 the township committee (now acting in accordance with R.S. 40:48-1) adopted an ordinance creating the position of Assistant Street and Sewer Superintendent.
The Department of Civil Service held an open competitive examination for the new position on July 15, 1960. Thereafter, on August 25, the Department notified defendant township that four persons had passed the examination, and furnished it with an employment list or eligible roster containing the names of plaintiff Schroder, Fitzgerald, Falcetano and Wirth, in that order, the first two being identified as veterans. As a matter of actual examination rating, Falcetano had finished first and plaintiff second. The next day, August 26, Falcetano's attorneys wrote the township committee, enclosing copies of letters they had written the Civil Service Commission on July 29 and again that very day, requesting a hearing and a review of the qualifications of plaintiff and Fitzgerald, and further requesting that no appointment be made pending Commission action. The objection to plaintiff and Fitzgerald was that they did not possess the required two years of supervisory experience in the construction, maintenance and repair of streets and sewers.
On September 19, 1960 the Department, through its chief examiner and secretary, certified to the township the names and addresses of plaintiff, Fitzgerald and Falcetano, in that
order, for the position of Assistant Superintendent, and requested it to notify the eligibles of the time and place to report for an interview, and to notify the Civil Service Commission of the appointment made. The very next day Falcetano's attorneys wrote the township committee that they had learned of the certification list, advising that they had demanded a hearing from the Civil Service Commission to protect the rights of their client, and urging that the township committee take no action until such a hearing had been held. The attorneys also wrote the Department, again demanding a hearing on behalf of Falcetano.
Plaintiff applied for the position of Assistant Superintendent by letter dated September 21, 1960. Fitzgerald also wrote the township, expressing his interest in the position. On September 22, 1960 the Department notified plaintiff, Fitzgerald, Falcetano and his attorneys, as well as the township that certification for the position was being held in abeyance pending study by the Department of the examination it had previously held.
In the meantime, the Department had written Fitzgerald on September 8 of the letter it had received from Falcetano's attorneys claiming he was not qualified for the position and asking him to supply evidence of the required supervisory experience. The Department also wrote plaintiff's attorneys of the objection made on behalf of Falcetano to the qualifications of plaintiff and Fitzgerald. Although Fitzgerald was given adequate opportunity to present satisfactory proof to the Department of two years' supervisory experience, he was unable to do so. The Department accordingly removed his name from the eligible roster, and on December 1, 1960 duly notified him of the action taken. It also wrote Falcetano's attorneys of the removal of Fitzgerald's name and informed them that a rechecking of ...