We part company with the majority on the question of laches, convinced that the matter of laches should be considered in relation to *Page 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, 126 N.J.L. 121), then such chancemen are entitled to be examined as a separate class. No one not a chanceman should be permitted to take that examination. The statute (R.S. 11:22-34) would seem so to ordain. Otherwise the "preference" which chancemen admittedly have and their right to be called to fill vacancies by "promotions," i.e., promotion examinations, are meaningless. This then necessarily leads to the conclusion that the rights of the chancemen of the City of Orange were invaded when eligibility to take examination with them was extended to those not having the status of chancemen. If this be so, then the prosecutors were in laches — as the Supreme Court found. We therefore — Judge WolfsKeil and I — vote to affirm for the reasons stated by Mr. Justice Heher in the Supreme Court, 126 N.J.L. 125.
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. *Page 205