On appeal from the Superior Court, Law Division.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Burling and Ackerson. For affirmance -- None. The opinion of the court was delivered by Vanderbilt, C.J.
The plaintiff, a police officer of the City of Newark since 1924, applied for and was granted a leave of absence without pay for a period from February 1, 1949, to May 31, 1949, to enable him to become a candidate in the city commission election in Newark on May 10th. In the course of the campaign and while on leave of absence he distributed literature and made several speeches and radio addresses in a number of which he asserted both generally and specifically that there was corruption, graft and misconduct in the police department of the City of Newark and charged his superiors with knowledge of and participation therein. In the middle of the campaign and while the plaintiff was still on leave, the Chief of Police called him in and requested him to furnish details with respect to the charges he had been making, but the plaintiff refused to answer any questions. His leave of absence was not revoked, however, and he was permitted to continue with his campaigning.
On June 1st, the first day of his return to active duty, the plaintiff was served with departmental charges preferred by the Chief of Police and was suspended from duty without pay pending the hearing of these charges. The charges, all of which are founded upon the violation of departmental rules and regulations, are six in number: (1) willful disobedience of orders and failure to report crime to his commanding officer, based upon his refusal to answer the questions put to him by his chief; (2) neglect of duty and failure to report the commission of crime, based upon a radio address made on April 4th wherein he professed to know the names of certain violators of the law; (3) failure to take proper police action and to divulge information to his superior officers, based upon a broadcast made on April 11th to the effect that narcotic peddlers were operating in Newark; (4) failure
to take proper police action and to divulge information to his superior officers, based upon a statement made in the same broadcast in which he publicly named a number of alleged gamblers still at large; (5) conduct contrary to good order and discipline in the making of false and inaccurate statements in broadcasts made on April 18th and May 9th concerning the handling by the police department of the case of a person arrested for carrying concealed weapons; and (6) public disparagement and unfavorable comment on the official actions of the Director of Public Safety, whom he charged in the course of a broadcast on May 9th with neglecting his public duties.
Prior to the date set for the hearing of these departmental charges by Director of Public Safety Keenan, the plaintiff commenced the present proceeding in lieu of a prerogative writ and, on June 27, 1949, on his motion a summary judgment was entered in his favor, vacating his suspension, directing his reinstatement and ordering that the charges against him be expunged, that the defendant Director of Public Safety be permanently enjoined from conducting any hearings on these charges, and that the Board of Commissioners reimburse him for the loss of his salary between the date of his suspension and his reinstatement. From this judgment the defendants took an appeal to the Appellate Division of the Superior Court. That appeal has now been brought here on our own certification.
The defendants contend that the plaintiff must exhaust his administrative remedies, consisting in this case, first, of a hearing before the defendant Director of Public Safety, and then a review by way of a hearing de novo before the Civil Service Commission, R.S. 11:22-38 and 39, before the plaintiff may resort to a proceeding in lieu of a prerogative writ. The plaintiff claims that the charges against him are insufficient as a matter of law for the reason that while he was on leave of absence he was not subject to the rules and regulations of the Police Department and so he could not have been guilty of violating any of them. These two questions will be considered separately.
The doctrine that a litigant must exhaust his administrative remedies before he may resort to the courts dates back to the advent of the Interstate Commerce Commission in 1887, Berger, Exhaustion of Administrative Remedies, 48 Yale L.J. 980 (1939), and the inception of the modern phase of administrative law marked by the creation of commissions with commingled legislative, executive and judicial powers as distinguished from the traditional body of administrative law by which officials and bodies in the executive branch of government both at the local and higher levels were kept within their respective spheres and were held to the methods prescribed by law by a series of remedies in the courts ranging from the prerogative writs and bills in equity for injunction to suits at law for damages. Intended as a simple rule of orderly procedure designed to provide uniformly that administrative bodies might perform their statutory functions without preliminary litigation in the courts, United States v. Sing Tuck, 194 U.S. 161, 24 Sup. Ct. 621, 48 L. Ed. 917 (1904); 1 Vom Baur, Federal Administrative Law, 207-229 (1942), the rule insisting on the exhaustion of administrative remedies has been highly provocative of litigation that shows no sign of abating from year to year or of producing the intended simplicity and uniformity; cf., e.g., 1943 Annual Survey of American Law, 107; 1944 Id. 188-189; 1945 Id. 201-205; 1946 Id. 217-224; 1947 Id. 237-238; 1948 Id. 160-163, for current instances of the waywardness of Federal decisions under the rule. Without attempting to comment on all the cases, we will content ourselves with referring to Myers v. Bethlehem Shipbuilding Corporation, 303 U.S. 41, 58 Sup. Ct. 459, 82 L. Ed. 638 (1938), holding that the doctrine of exhausting administrative remedies applies even to cases where the administrative agency has to pass on the question of its own jurisdiction. This holding has been recently reaffirmed in Securities and Exchange Commission v. Otis & Co., 70 S. Ct. 89, where the United States Supreme Court reversed without opinion a decision of the United
States Court of Appeals for the District of Columbia to the contrary, 176 F.2d 34 (1949). Where the question of jurisdiction depends, as it often does, on questions of fact, and where the Federal courts apply their version of the "substantial evidence" rule, which often signifies something falling far short of the weight of the evidence, the ultimate benefits of judicial review of the question of jurisdiction may be little more than pro forma, Cf. National Labor Relations Board v. Hearst Publications, 322 U.S. 111, 64 Sup. Ct. 851, 88 L. Ed. 1170 (1940). This point of view is at variance with the Rule of Law as enforced in this State, Cf. Mulhearn v. Federal Shipbuilding & Dry Dock Co., 2 N.J. 356, 364 (1949).
Enough has been said to raise grave doubts as to the wisdom of adopting the rule of exhaustion of administrative remedies as contended for by the defendants. To determine what rule of law should be adopted in the case before us, we must consider what was intended to be accomplished by Article VI, Section V, paragraph 4, of our Constitution:
"4. Prerogative writs are superseded and, in lieu thereof, review, hearing and relief shall be afforded in the Superior Court, on terms and in the manner provided by rules of the Supreme Court, as of right, except in ...