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Gallagher v. Mayor and Council of Town of Irvington

Decided: July 11, 1983.


On appeal from Superior Court, Law Division, Essex County, whose opinion is reported at 184 N.J. Super. 225.

Botter, Polow and Brody. The majority opinion of the court was delivered by Brody, J.A.D. Botter, P.J.A.D., dissenting.


The Law Division held that N.J.S.A. 40A:14-9.4 ("§ 9.4") disqualified defendant Thomas McGotty for appointment to the office of fire chief in the Town of Irvington because he was a nonresident who scored below plaintiff, a resident who scored highest on the promotion test. The judge vacated McGotty's appointment in a reported opinion. Gallagher v. Irvington, 184 N.J. Super. 225 (Law Div.1982). We hold that § 9.4 creates a preference for a resident over a nonresident in a civil service municipality only when they tie for third place thereby causing the appointment process to be stymied unless the tie is broken. That is not the case here. We therefore reverse.

The operative statutory language, applicable to civil service municipalities such as Irvington (§ 9.4) and to municipalities without civil service (N.J.S.A. 40A:14-9.6), reads:

In any municipality . . . promotions to positions on the paid or part-paid fire department and force shall be based upon merit as determined by suitable promotion tests for such positions, provided however that a resident shall be appointed rather than a nonresident thereof in any instance in which the resident and nonresident achieved the same final average score in such test. . . .*fn1

Section 9.4 literally applies only in case of a tie between a resident and nonresident who achieved "the same final average score." Its essential tie-breaking nature has been noted. Terry v. Mercer Cty. Freeholder Bd., 86 N.J. 141, 150 (1981) ("fire departments are to prefer a resident if two applicants obtain the same score"); In re Leary, 180 N.J. Super. 557, 559 (App.Div.1981), rev'd on other grounds, 91 N.J. 151 (1982) ("creation of . . . promotional preference for residents having the identical qualifications as nonresidents"); Smith v. Newark, 128 N.J. Super. 417, 431 (Law Div.1974), rev'd on other grounds, 136 N.J. Super. 107 (App.Div.1975) ("the tie-breaking preference provided for in the challenged legislation is not unreasonable").

The problem arises from the statutory language "a resident shall be appointed rather than a nonresident" when they tie. If that language compels appointment of the tied resident, the statute would only make sense when applied in a municipality that has a system requiring appointment of the highest scorer. However, the statutory system for appointment in municipalities with civil service permits the appointing authority to appoint any one of the top three eligibles as certified by the Civil Service Commission. N.J.S.A. 11:22-16. Thus, if a certified resident and a nonresident tie for first or second place, compelling the appointing authority to appoint the tied resident would eliminate the appointing authority's rule-of-three discretion. It would also bring about an absurd result where there is a tie for second. The appointing authority in such a case would be compelled to appoint the resident who tied for second over the highest scoring candidate who may also be a resident.

An absurd result must be avoided in interpreting a statute. Marranca v. Harbo, 41 N.J. 569, 574 (1964). The trial judge eliminated the possibility of such an absurd application by concluding that § 9.4 is not a tie-breaker. He read the statute as disqualifying any nonresident candidate who does not do better on the test than the highest scoring certified resident. Put another way, he construed § 9.4 "to grant a preference to a

[meaning "any"] resident whose test score equals or exceeds that of a nonresident." Gallagher, supra, 184 N.J. Super. at 235.

In interpreting a section of a statute, "primary regard must be given to the fundamental purpose" of the underlying legislation. See N.J. Builders, Owners & Managers Ass'n v. Blair, 60 N.J. 330, 338-339 (1972). Our task is to harmonize the section with the purpose of the whole. Brown v. Brown, 86 N.J. 565, 576-577 (1981). We must also read this section in pari materia with other statutes which deal with the "same matter or subject" and "seek to achieve the same overall legislative purpose." See Mimkon v. Ford, 66 N.J. 426, 433 (1975).

Section 9.4 was part of L. 1972, c. 3, which prohibits any municipality from requiring residency as a condition of initial appointment or promotion in paid and part-paid fire (N.J.S.A. 40A:14-9.1) and police (N.J.S.A. 40A:14-122.1) departments. Abolishing residency requirements was the fundamental purpose of the 1972 act as is apparent from the accompanying legislative statement which reads in part:

This bill changes the residency requirement for policemen and firemen to the State of New Jersey.

However § 9.4 is interpreted, it must be seen as an aberrant vestige of the residency requirement for appointment and therefore contrary to the fundamental purpose of the legislation viewed as a whole. Harmonizing that section with the purpose of the underlying legislation requires that we limit its application to the exceptional case. A return to any broader residency requirement is best left to a clear legislative enactment.

Indeed, such a return has already been accomplished by the adoption of L. 1976, c. 132, N.J.S.A. 40A:14-10.1a, which repealed the abolition of residency requirements to permit favoring residents as a class over nonresidents by the use of separate lists of eligibles. However, this return to favoring residents is confined to initial appointments. The abolition of residency

requirements for promotion appointments remains unchanged. The statement accompanying the 1976 act demonstrates that the Legislature was keenly aware of the narrow scope of § 9.4 which it left intact when it expanded the ...

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