Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Collester, J.A.D.
The Town of Hammonton and Michael F. DeLaurentis appeal from a determination by the Civil Service Commission that Michael F. DeLaurentis, who was appointed a policeman on October 23, 1961, just prior to the general election of November 7, 1961 when the voters of Hammonton adopted Civil Service, was only a temporary employee and subject to the taking of a Civil Service examination in order to acquire permanent status and tenure.
The facts are not in dispute. On May 22, 1961 a petition for the adoption of Civil Service for the employees of the Town of Hammonton was filed with the town clerk pursuant to N.J.S.A. 11:20-1, which required that the question of adoption be placed on the ballot for consideration by the voters at the next general election.
On October 23, 1961 the mayor and council of Hammonton appointed DeLaurentis a regular patrolman in the police department to be effective November 1, 1961. On the latter date he was accepted as a member of the Police and Firemen's Retirement System of New Jersey.
At the general election of November 7, 1961 the voters of Hammonton adopted Civil Service. Thereafter, the Civil
Service Commission conducted a survey and classification of the employees of the town, pursuant to Title 11, and classified DeLaurentis as "patrolman, temporary appointee" in a report filed with the town clerk on October 26, 1962. On November 19, 1962 the town and DeLaurentis requested that the Commission reconsider this classification, and on December 6, 1962 appealed to the Appellate Division from that part of the report of October 26 which classified DeLaurentis as a temporary appointee.
In January 1963 the Commission gave public notice of an examination for patrolman, which examination was held on February 9, 1963. The town and DeLaurentis moved before the Appellate Division on February 11, 1963 to remand the case to the Commission for a hearing and the taking of additional evidence. On April 30, 1963 the motion was denied, and by the same order this court permitted the Commission to promulgate the employment list resulting from the examination but restrained it from certifying eligibles from that list until the final decision or a further order of this court.
The Civil Service Commission urges that since DeLaurentis was appointed between the filing of the petition and the voters' adoption of Civil Service, he was not entitled to tenure. It bases its determination on N.J.S.A. 11:21-6 which provides as follows:
"Hereafter, all officers, clerks and employees in the employ of any county, municipality or school district at the time of the adoption of this subtitle by such county, municipality or school district, coming within the competitive or noncompetitive class of the civil service, except such as may be appointed between the time of the filing of the petition for the adoption of this subtitle and the holding of the referendum for the adoption thereof in such county, municipality or school district, shall continue to hold their offices or employments, and shall not be removed therefrom except in accordance with the provisions contained in this subtitle relative to the removal of persons in the competitive or noncompetitive class, it being the intention hereby to include any and all such officers, clerks, employees and laborers within the classified service of a county, municipality or school district, and to be subject in all respects to the provisions of this subtitle." (Emphasis added)
The Commission asserts that DeLaurentis acquired no tenure by virtue of his appointment and may now qualify for the position only by taking the necessary Civil Service examination and otherwise satisfying the Civil Service requirements.
Appellants contend that on the effective date of his appointment, November 1, 1961, DeLaurentis obtained tenure under the police tenure statutes, R.S. 40:47-5 and N.J.S.A. 40:47-6. These sections provide, in essence, that a permanently employed member of the police department shall hold office during good behavior and not be suspended, removed, fined or reduced from office except for just cause, and then only after charges have been preferred and a public hearing held. Appellants claim it was the intention of the mayor and council to appoint DeLaurentis to a permanent position, and in fact he was accepted as a member of the Police and Firemen's Retirement System on November 1. Therefore, they urge, he acquired a right to his position which could not be divested by the subsequent adoption of Civil ...