On appeal from a judgment of the Passaic County County Circuit Court.
For the appellants, Henry Marelli.
For the respondent, Charles S. Silberman.
The opinion of the court was delivered by
HEHER, J. Plaintiffs were jail keepers of the County of Passaic during the years 1933, 1934 and 1935. Pursuant to
the authority of chapter 13 of the Laws of 1933 (Pamph. L., p. 26; see, also, chapter 446 of the same session laws, p. 1244) and like subsequent enactments (see chapter 2, Pamph. L. 1935, p. 12), the local board of chosen freeholders, in a general retrenchment of salaries for that period, reduced their salaries twenty-five per centum and those of the court attendants twenty per centum. Chapter 255 of the Laws of 1927 (Pamph. L., p. 474), provided that, in counties of the class embracive of Passaic, the jail keepers "shall receive and be paid the same compensation as may" then or thereafter "be paid to court attendants engaged in attending" certain of the county courts. The salaries of such court attendants were regulated by chapter 25 of the Laws of 1926 (Pamph. L., p. 48); and these jailers had theretofore been compensated accordingly. This action was brought to recover the five per cent. difference in salary, on the hypothesis that the local governing body, in the exercise of the statutory power to curtail salaries, could not lawfully reduce the salaries of jailers below that fixed for court attendants. The enabling act (chapter 13 of the Laws of 1933, supra) contains a proviso that, "in fixing salaries or compensation there shall be no discrimination among or between individuals in the same class of service." See, also, chapter 446 of the Laws of 1933, supra.
The complaint was struck out on the ground that, under section 24 of the Civil Service Act of 1908 (Comp. Stat. 1910, p. 3804), as amended by chapter 236 of the Laws of 1917 (Pamph. L., p. 797; R.S. 1937, 11:22-38), plaintiffs "had a complete administrative remedy to correct this discrimination effected by a reduction in compensation" * * * citing Draper v. Commissioners of Public Instruction, 66 N.J.L. 54, and Board of Education of Flemington v. State Board, 81 Id. 211.
But these cases are not apropos. They lay down the procedural principle that, where a special tribunal is set up to determine controversies arising in the administration of a governmental department or agency, the courts will not exercise their powers of review until the remedial authority of the statutory tribunal has been exhausted. They have specific
reference to the statute providing for the management of public schools by district boards, and prescribing that the state superintendent of public instruction "shall decide, subject to appeal to the state board of education * * *, all controversies and disputes that shall arise under the school laws, or under the rules and regulations of the state board of education." Comp. Stat. 1910, pp. 4718, 4727; R.S. 1937, 18:1-1, 18:3-14, 18:3-15. Vide Buren v. Albertson, 54 N.J.L. 72; Thompson v. Board of Education of Borough of Elmer, 57 Id. 628; Jefferson v. Board of Education of the City of Atlantic City, 64 Id. 59; Stockton v. Board of Education of City of Burlington, 72 Id. 80; Du Four v. State Superintendent of Public Instruction, 72 Id. 371; Town Council of Montclair v. Baxter, 76 Id. 68; Ridgway v. Board of Education, 88 Id. 530; Schwarzrock v. Board of Education of Bayonne, 90 Id.370; Board of Education of Borough of Beach Haven v. State Board of Education, 115 Id. 364.
The Civil Service Act, supra, contains no such grant of authority. The section invoked (R.S. 1937, 11:22-38) merely provides that, with a certain exception, "No officer, clerk or employe holding a position in the competitive class shall be removed, discharged, fined or reduced, * * * until he has been furnished with a written statement of the reasons for such action by the appointing authority and been allowed a reasonable time to make answer thereto," and that the "action of the appointing authority ordering or directing such removal, discharge, fine or reduction shall not take effect until approved by order of the commission" created by the act. See, also, R.S. 1937, 11:25-1, et seq. Manifestly, these provisions do not clothe that agency with jurisdiction to review and determine the validity of the action of the local governing body in thus decreasing the salaries of the plaintiff jail keepers in the exercise of the power conferred by chapter 13 of the Laws of 1933, supra, or to decree what compensation they are entitled to receive under the ...