21 A.2d 782 | N.J. | 1941
Lead Opinion
The writ of certiorari was directed to the appointment by respondent Caldwell, Director of Public Safety of the City of Orange, of one Miller as a patrolman on the police force, said Miller not being a "chanceman" nor having served as such, as required by the local ordinance as a condition of eligibility to appointment as patrolman. The Supreme Court dismissed the writ on the authority of the similar case of DeStefano v. CivilService Commission, decided at the same time and reported in
Applying these principles to the present case, the facts are that the appointment of Miller was made on June 10th, 1940, and the writ of certiorari was allowed on June 22d 1940, a regular motion day of the justice presiding in the Essex Circuit, after notice and argument. Obviously there was no laches, if, as we have just said, the legal injury arose from the appointment, for quite conceivably the appointing authority might have appointed a chanceman who had passed the examination.
These considerations lead to a reversal of the judgment under review, to the end that the appointment of Miller be set aside, with costs as against the City of Orange.
Dissenting Opinion
We part company with the majority on the question of laches, convinced that the matter of laches should be considered in relation to *204
the date when the examination for patrolmen was advertised as open to the citizens of Orange generally, and not confined to those who held the position of chancemen. Notices were published on September 30th, and October 7th, 1938, that tests for the office of patrolman would be held on October 17th, 1938, and April 28th, 1939. If, as the majority opinion concedes, vacancies in the competitive class shall be filled as far as possible by promotion from a lower grade: that chancemen hold positions in a lower grade and, as we conclude, are entitled to preference in appointment as patrolmen if found competent by examination (DeStefano v. Civil Service Commission,
It is a salutary thing to have order and regularity in the matter of municipal appointments. The instant case is an excellent example of the confusion that results where, while conceding that chancemen are entitled to preference and to enter a higher office by promotion, nonetheless others not so entitled are admitted to the same examination.
The judgment, in our opinion, should be affirmed.
For affirmance — THE CHIEF JUSTICE, WOLFSKEIL, JJ. 2.
For reversal — THE CHANCELLOR, PARKER, BODINE, PERSKIE, PORTER, COLIE, DEAR, WELLS, RAFFERTY, HAGUE, THOMPSON, JJ. 11. *205