Bergen County v. Civil Serv. Comm'n

• Decision Date: 03 September 1948
• Docket Number: No. 22.,22.
• Citation: 137 N.J.L. 688,61 A.2d 256
• Parties: BERGEN COUNTY v. CIVIL SERVICE COMMISSION et al.
• Court: New Jersey Supreme Court

137 N.J.L. 688

61 A.2d 256

BERGEN COUNTY

v.CIVIL SERVICE COMMISSION et al.

No. 22.

Court of Errors and Appeals of New Jersey.

Sept. 3, 1948.

Appeal from Supreme Court.

Certiorari by the County of Bergen, by its Board of Chosen Freeholders, to review a decision of the Civil Service Commission of the State of New Jersey ordering the appointment for the usual provisionary period of Frank F. Dzerk as traffic patrolman. From a judgment of the Supreme Court affirming the action of the Civil Service Commission, 136 N.J.L. 467, 57 A.2d 215, the prosecutor appeals.

Judgment affirmed.

Milton T. Lasher, of Hackensack, for appellant.

Walter D. Van Riper, Atty. Gen., and Louis S. Cohen, Deputy Atty. Gen., for Civil Service Commission.

Milton B. Conford, of Newark, and John J. Breen, of Hoboken, for Frank F. Dzerk.

COLIE, Justice.

On May 16, 1947 the Civil Service Commission certified Frank F. Dzerk and others as eligible for appointment to the Bergen County Traffic Police Department. On May 21st the Board of Freeholders made a number of appointments of traffic patrolmen but passed over Mr. Dzerk who was fourth on the list certified by the Commission. Mr. Dzerk was a disabled veteran, holding a medical discharge from the army as a result of a head injury or injuries and a nervous breakdown. All of the candidates were examined by Dr. Raphael S. Gilady, acting for the Board of Freeholders. He reported that Mr. Dzerk was in perfect physical condition but recommended examination in a mental hygiene clinic and the opinion of a psychiatrist as to his mental stability. The Board of Freeholders requested the Commission to arrange for a psychiatric examination of all candidates which was refused. The Board of Freeholders then engaged Dr. Laurence M. Collins, Clinical Director of the New Jersey State Hospital at Greystone Park, to make an examination. His opinion was that Mr. Dzerk was ‘not capable of assuming the duties and responsibilities required in a police officer.’ The Commission held a hearing and rendered its decision ordering the Board of Freeholders ‘to appoint for the usual probationary period Frank F. Dzerk.’

The Board of Freeholders applied for and was granted a rule to show cause why certiorari should not be allowed to review the decision of the Civil Service Commission. Depositions were taken and upon the return of the rule it was stipulated that the Supreme Court decide the meritorious question and make a final determination. Before the Supreme Court was the deposition of Dr. S. Philip Goodhart, a qualified psychiatrist, whose opinion was that ‘Mr. Dzerk physically and mentally shows a condition which merits his acceptance for a probationary period as police officer.’

The Supreme Court affirmed the action of the Civil Service Commission directing the appointment of Mr. Dzerk for the probationary period, relying upon the decisions of that court in Civil Service Commission v. Rife, 128 N.J.L. 503, 27 A.2d 214, and Morgan v. Civil Service Commission, 131 N.J.L. 410, 36 A.2d 898.

The question for decision is whether the appointing body, in this case the Bergen County Board of Freeholders, was required to appoint a disabled veteran to the county police force, such veteran having been certified by the Civil Service Commission despite the fact that the veteran, in the judgment of the Board of Freeholders, should not be appointed because of an asserted neurotic condition.

The answer must be found in the statutes relative to veterans' preferences in force in 1947. They read as follows:

R.S. 11:27-3, N.J.S.A. ‘Veterans with a record of disability incurred in line of duty, as herein defined in section 11:27-1 of this Title, who shall receive a passing rating in competitive examinations or tests as herein provided for entrance into the public service, shall be placed at the top of the employment list in the order of their respective final ratings.’

R.S. 11:27-4, N.J.S.A.: ‘The Civil Service Commission shall certify to the appointing authority the names and addresses of the three candidates standing highest upon the register for each position to be filled, and such appointing authority shall select one of the three so certified;...