On appeal from the former Supreme Court, whose opinion is reported in 136 N.J.L. 410.
For affirmance: Chief Justice Vanderbilt and Justices Case, Heher, Oliphant, Wachenfeld, Burling, and Ackerson. For reversal: None. The opinion of the court was delivered by Heher, J.
We concur in the judgment of the former Supreme Court and, generally, in the reasoning of the deliverance of Mr. Justice Colie for the court.
The court found as a fact that there was "a stoppage of work * * * because of a labor dispute" at the respondent employer's plant, where Carlucci was employed, and that he "was 'participating in * * * the labor dispute,'" and was therefore ineligible for benefits under the Unemployment Compensation Act (R.S. 43:21-1 et seq.), and liable under section 43:21-16(d)
for the repayment of the benefits provided while so disqualified.
The first question is whether the employer "had sufficient interest" in the subject matter to warrant the issuance of a certiorari at his instance to review the judgment of the Board of Review absolving the employee from the obligation of repayment. The cases invoked are those holding that a review of a municipal ordinance by certiorari is open only to one who has suffered a special injury above and beyond that sustained in common with the public. E.G. State, Montgomery Pros., et al. v. Inhabitants of Trenton, 36 N.J.L. 79 (Sup. Ct. 1872); Hamilton Lumber & Mfg. Co. v. City of Paterson, 121 N.J.L. 95 (Sup. Ct. 1938). The conclusion below was that such special interest is to be found in the requirement of R.S. 43:21-7 (c) (1) that benefits paid to an eligible individual are chargeable to the employer.
But the insistence is that since the Appeal Tribunal, at Carlucci's instance, had overruled the Commission's demand for repayment of the benefits received by him, and the determination was, on the employer's appeal, affirmed by the Board of Review, under R.S. 43:21-6 (b) (1) the moneys so paid are not now chargeable to the employer, no matter what the outcome on certiorari; and if charged to the employer's account in disregard of this latter provision, the question is determinable in a suit between the employer and the Commission, in which Carlucci has no interest.
The instant proceeding is not within this double successive affirmance proviso. It is not an action for benefits instituted by the employee, but rather a proceeding under section 43:21-16 (d) for the recovery of benefits paid to one ineligible to receive them under the statute. The policy of section 43:21-6 (b) (1) becomes readily apparent when considered in the light of the legislative purpose to provide immediate relief to the victims of involuntary unemployment. It has reference only to the initial proceeding for benefits brought by the employee. Here, the payments became chargeable to the respondent employer when made; and so the employer had an interest sufficient to challenge the adverse action below.
The benefits in question were paid to the employee during the year 1945. Later on, by chapter 35 of the Laws of 1947 (Pamph. L. p. 94), the phrase "any individual" was substituted for "an eligible individual" in delimiting the class whose payments are chargeable to the account of the employer under section 43:21-7 (c) (1). It would seem that in this respect the amendment, coming as it did soon after this controversy arose as to the meaning of the particular provision, was but a legislative demonstration of the sense of the original language, i.e. a legislative interpretation of the preexisting enactment rebutting the presumption of substantial change. Sutherland's Statutory Construction (3 d. ed. 1943) section 1931. Be that as it may, the Commission deemed Carlucci eligible for benefits, and, however the original clause is read, the respondent employer had a continuing interest in the question of the claimant's eligibility until it was finally determined. The provision for charging the benefits paid against the employer's account gave rise to a special and peculiar interest sufficient in itself to invest the respondent employer with the right of review by certiorari. The respondent employer's unquestioned special interest under this statutory direction in the initial administrative action continues throughout the judicial review of the proceeding for the recapture of benefits actually paid. Here, there was no appellate review of the initial determination; and the cited provision of subsection 21:6 (b) therefore has no application.
The protection of the general or common interest rests with the public authorities. But in these circumstances the interest of the employer is something more than "a common concern for obedience to law." Compare L. Singer & Sons v. Union Pac. R. Co., 311 U.S. 295, 61 S. Ct. 254, 85 L. Ed. 198 (1940). It was the settled rule under the old practice in this State that mandamus, certiorari and quo warranto were invocable by private persons, in the court's discretion, "for the redress or prevention of public wrongs by public bodies and officers, whose official sphere is confined to some political division of the state, whenever the applicant is ...