Chapman v. Frobisher

• Decision Date: 10 August 1939
• Citation: 8 A.2d 76,123 N.J.L. 127
• Parties: CHAPMAN v. FROBISHER, Mayor, et al.
• Court: New Jersey Supreme Court

8 A.2d 76

123 N.J.L. 127

CHAPMAN

v. FROBISHER, Mayor, et al.

Supreme Court of New Jersey.

Aug. 10, 1939.

Petition by Charles J. J. Chapman against Joseph E. Frobisher, Mayor, John I. Kirk and others, councilmen, and the Town of Kearny, for an order to show cause why the appointment of Harley S. Edwards to the position of street commissioner of the Town of Kearny should not be set aside.

Petition dismissed without prejudice.

Charles E. McCraith, Jr. and Leo S. Carney, both of Newark, for petitioner.

John H. Cooper, of Kearny (Duane E. Minard, of Newark, of counsel), for respondents.

BROGAN, Chief Justice.

This matter is before me on petition and rule, depositions taken in aid thereof and a stipulation embracing the facts conceded by the parties. The petition was filed by Charles J. J. Chapman, delineating his own legal status and his right to the post of street commissioner of the Town of Kearny and praying for an order to show cause "why the appointment of Harley S. Edwards to the position of street commissioner of the Town of Kearny should not be set aside." A brief statement of the legal situation is as follows:

Mr. Chapman, a citizen of the Town of Kearny, claiming to be entitled to the post of street commissioner of that town, rests his claim upon these facts: That the Town of Kearny is operating under and subject to an Act of the Legislature known as the Civil Service Act (R. S. 11:19-2 et seq., N.J.S.A. 11:19-2 et seq.) adopted by the people of Kearny on June 22, 1938; that the post in question being vacant on Oct. 1, 1938, the Civil Service Commission, at the request of the governing body of Kearny, held an examination for the purpose of certifying persons qualifying and eligible for the position of street commissioner; that as a result of said examination the petitioner was certified as eligible; that petitioner is an honorably discharged war veteran and that by force of the statute, P. L. 1938, Chap. 381, p. 952, N.J.S.A. 11:27-4, providing that "whenever the name * * * of a veteran * * * shall be among those certified to the appointing authority the choice of the appointing authority shall be limited to the veteran or veterans whose name or names are included in such certification, regardless of position on the list," petitioner was entitled to the appointment, but that, notwithstanding the certification of the Civil Service and the status of the petitioner as a veteran, the governing body appointed Harley S. Edwards to the position, in defiance of the statute, supra.

The governing body, in justification of the appointment of Mr. Edwards, contends that the post of street commissioner is an office, created by ordinance, with a fixed term and that therefore it does not come within the purview of the Civil Service Act as to classified service, relying on McKenzie v. Elliott, 77 N.J.L. 43, 72 A. 47; McGrath v. Bayonne, 85 N.J.L. 188, 189, 192, 89 A. 48; Browne v. Hagen, 91 N.J.L. 544, 104 A. 207; and that the action of the governing body in asking the Civil Service Commission to hold an examination for this post was a mistake.

In further justification of the appointment of Edwards, it is said that the appointment is valid by virtue of the statute (R.S. 11:27-11.1; amended P. L. 1938, Chap. 38, p. 113, N.J.S.A. 11:27-11.1) because he, too, was an honorably discharged veteran, and, in addition, was awarded a Distinguished Service Cross at the time of the World War for extraordinary heroism by...