Decided: July 7, 1965.
ROBERT V. PRINGLE, APPELLANT,
NEW JERSEY DEPARTMENT OF CIVIL SERVICE AND BOROUGH OF BELMAR, RESPONDENTS
For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Schettino, J.
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This case involves the validity of a civil service promotion authorized and made without the benefit of competitive examination.
On January 22, 1963 Harold F. Thompson was temporarily appointed Captain of Police by and for the Borough of Belmar. The Civil Service Commission thereafter issued public notice of its intention to conduct a competitive examination in order to prepare a list of candidates eligible for permanent appointment to the position. N.J.S.A. 11:22-16. Three eligibles applied to take the examination; sergeants Robert V. Pringle, Harold F. Thompson and Jack J. Manutti. On October 14, 1963 the president of the Civil Service Commission authorized Thompson's promotion to the permanent position
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of captain pursuant to Civil Service Rule 24,*fn1 thereby dispensing with the scheduled competitive examination. The authorization was in accordance with the Commission's long standing practice of limiting promotions under Rule 24 to eligibles who have previously passed an equivalent examination; Thompson's prior appointment as sergeant was made from a promotional appointment list promulgated after competitive examination. The borough thereafter formally appointed Thompson to that position on a permanent basis.
On December 17, 1963 appellant filed a protest with the Commission claiming that his rights had been violated because the promotion was made without the benefit of the scheduled examination. After a review of the proceedings, the Commission determined that appellant's rights had not been violated and advised him accordingly. Appellant appealed to the Appellate Division. We certified the cause on our own motion before argument was had in the Appellate Division. At argument, we requested counsel to submit supplemental memoranda on several issues.
Promotion in the civil service is according to merit and fitness ascertained as far as practicable by examination, which also, as far as practicable, is competitive. N.J. Const., Art 7, § 1, par. 2; R.S. 11:21-3; 11:4-2. The Commission's function is to ascertain those applicants possessed of these qualities and to certify their names to the appointing authority. N.J.S.A. 11:22-16. Specifically, N.J.S.A. 11:22-16 provides that the Commission certify to the appointing authority the names and addresses of three candidates willing to accept employment standing highest on the register for the class or grade in which the position belongs. The appointing authority then shall select one of the three for appointment, but it
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is under no obligation to select the candidate standing highest on the list.
As noted above Rule 24 under which Thompson was promoted provides in part that when there are not more than three persons eligible to take the promotion test or not more than three of those who are eligible file applications to take such test and the preference rights of veterans will not be affected, the president may, in his discretion, authorize such promotion without competitive test. Appellant contends that a promotion under this rule violates the constitutional and statutory mandates requiring an examination for promotion.
The Commission maintains that Rule 24 is justified on the grounds that where the facts enumerated in the Rule are present, an examination would be impracticable. For, as there are only three candidates, the appointing authority can, irrespective of the examination results and standings, appoint any one of the three.
The elimination of an examination on the basis of impracticality in these circumstances has been an established practice since 1908, shortly after the adoption of the civil service system.*fn2 The principle is well established that resort
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may be had to long usage, contemporaneous construction and practical interpretation in construing statutes, to ascertain the meaning of technical terms, to confirm a construction deduced from the language, to explain a doubtful phrase or to ascertain the meaning of a phrase if obscurely expressed. State v. LeVien, 44 N.J. 323, 330 (1965); Lane v. Holderman, 23 N.J. 304, 322 (1957); Swede v. City of Clifton, 39 N.J. Super. 366, 377 (App. Div. 1956), affirmed 22 N.J. 303 (1956); State Dept. of Civil Service v. Clark, 15 N.J. 334, 341 (1954); Suburban Electric Co. v. City of Elizabeth, 59 N.J.L. 134, 137 (Sup. Ct. 1896).
Furthermore, the continuous practical interpretation of the statute by the Commission over a period of years without interference by the Legislature is evidence of its conformity with the legislative intent. Walsh v. Dept. of Civil Service, 32 N.J. Super. 39, 48 (App. Div. 1954); 2 Sutherland, Statutory Construction (3 d ed. 1943) §§ 5107, 5109. Similarly, we note that N.J.S.A. 11:22-16 has been amended three times since the promulgation of the rule (L. 1920, c. 298, § 2, p. 541; L. 1932, c. 122 § 2, p. 205; L. 1952, c. 48, § 1, p. 368) without alteration of the provisions providing for the rule of "one out of three" on which the Commission relies for its finding of impracticability. See Lane v. Holderman, supra, 23 N.J., at p. 323; Sutherland, supra, § 5109.
More importantly, the practical construction of this statute and the acceptance thereof being of such long standing, we
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know of no reason why we should compel departure from it now.*fn3 See State Dept. of Civil Service v. Clark, supra.
Appellant finally contends that the delegation of the authority to dispense with an examination by the Commission to the president is invalid, citing Zahn v. Department of Civil Service, 8 N.J. 423 (1952),*fn4 and other cases referring to Zahn.
The issue thus raised is whether the power to dispense with an examination on the basis of impracticability is an executive
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function, power or duty under N.J.S.A. 11:1-6 which provides that all executive functions, powers and duties vested in the Commission by any section of the Title shall be performed, exercised or discharged solely by the president who shall also exercise general supervision over all activities carried on under the Title. Although the word "executive" in its numerous connotations has various meanings, the context most generally applicable is that of the division of the powers of government, i.e., executive, legislative and judicial. See State ex rel. McNamara v. Civil Service Commission, 128 Conn. 585, 24 A. 2 d 846 (Sup. Ct. Err. 1942). It was in this context that the Legislature was speaking, delegating the executive functions to the president and reserving the judicial and legislative functions to the Commission. See N.J.S.A. 11:5-1.
We note that the president has exercised this power since 1949 and that although the validity of this interpretation and practice has been subject to question (see Zahn, supra; Falcey v. Civil Service Comm. of New Jersey, 16 N.J. 117 (1954); Flanagan v. Dept. of Civil Service, 29 N.J. 1 (1959)), the Legislature has not interfered. As we stated above, this is evidence of conformity with legislative intent. See Walsh, supra; Sutherland, supra, § 5109.
Thus, since it was the intention of the Legislature to have the president administer the mechanics of the act and as we have previously held the power to dispense with an examination on the basis of impracticability to be an administrative function (Falcey, supra, 16 N.J. 117, 123; DeStefano v. Civil Service Commission, 130 N.J.L. 267, 269 (E. & A. 1943)), it follows that in this context we hold it to be an executive function. Cf. Kelley v. John, 162 Neb. 319, 75 N.W. 2 d 713 (Sup. Ct. 1956); Norfolk & W. Ry. Co. v. Board of Public Works, 124 W. Va. 562, 21 S.E. 2 d 143, 146 (Sup. Ct. App. 1942); Drumheller v. Berks County Local Board No. 1, 130 F.2d 610, 611 (3 Cir. 1942).
Affirmed, no costs.