On appeal from the Superior Court, Law Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Heher, J.
[5 NJ Page 537] By an ordinance adopted December 30, 1946, and amended November 17, 1947, the defendant municipality was zoned for business and residential uses in the purported exercise of the power granted by R.S. 40:55-30, et seq. Two residence zones, "A" and "B," are therein delineated. Article VII of the ordinance provides that no dwelling shall be erected in the Residence "A" zone on a plot less than a half acre in area, or in the Residence "B" zone on a plot of less than five acres. At the time of the adoption of the ordinance, plaintiff's mother, Emilie B. Fischer, was the owner of a tract of land in the township comprising 24 acres, situate in substantial part in both residence zones. She petitioned the local governing body for an amendment of the ordinance to enlarge the Residence "A" zone so as to include the whole of her tract. The petition was denied March 25, 1949, and the petitioner was so advised on April 1st ensuing. On July 21st following plaintiff applied to the local building inspector for a permit to erect a dwelling on a plot 200 ft. x 145 ft., a part of his mother's lands situate in the Residence "B" zone, on the northerly side of Burnt Mills-Pluckemin Road. The request was denied. The building inspector deposed that the application was made in writing, and that the writing was returned to the applicant upon the denial of the application; plaintiff said he made only an "informal request" for leave to build. On September 8, 1949, Emilie conveyed to plaintiff the plot made the subject of that application; and on September 15th ensuing plaintiff brought this proceeding in lieu of certiorari for an adjudication that the cited provision of Article VII of the zoning ordinance, barring the erection of a dwelling in the Residence "B" zone on a plot in area less than five acres, is arbitrary and unreasonable and therefore not a valid exercise of the zoning power. The township's motion for a dismissal of the complaint and for summary judgment for want of jurisdiction of the subject matter was denied. Its alternative motion for an order directing "a more definite statement of facts" upon which the claim of unconstitutionality is based was granted. Defendant's appeal to
the Appellate Division of the Superior Court was, before hearing, certified here on our own motion.
Want of jurisdiction of the subject matter is asserted; and the judgment, although interlocutory, is appealable before final judgment under Rule 4:2-2(c).
It is said that Emilie had lost the right to challenge the constitutional sufficiency of the ordinance, and that plaintiff "could stand in no better position than his predecessor in title." The reasoning is that under Ch. 381 of the Session Laws of 1948, effective September 15th of that year (P.L. p. 1562, N.J.S.A. 2:80-7), it is a jurisdictional sine qua non that such an attack upon the ordinance be instituted by action within thirty days after the accrual of the right, and that Emilie's right to maintain the action had expired October 15, 1945, thirty days after the enactment of the limitation. The argument presupposes that inaction by the landowner for thirty days after the statute by its terms had become operative served to bar an action for the vindication of his fundamental right of property invaded by the pre-existing ordinance, even though there was no occasion for the exercise of the right of user thus curtailed in violation of the organic law and the ordinance had not been invoked to materialize the potential threat to his right of property. Yet where there is a valid exercise of the zoning power, there is a continuing right to a variance if the strict application of the regulation would work hardship in the individual case. Ch. 305 of the Session Laws of 1948; P.L., p. 1221; N.J.S.A. 40:55-39. It is also contended, in the alternative, that if plaintiff "was not barred by the failure of his predecessor in title to take action," his right to challenge the constitutionality of the ordinance, as applied to the particular plot, "had accrued as early as July 21, 1949," when he "asserted a property interest" in the plot "by filing an application for a building permit, which was rejected on August 5, 1949," and was barred for failure of action within the appointed period of limitation.
The statute of limitation is without efficacy. It purports to bar the "review, hearing and relief" in lieu of the commonlaw prerogative writs afforded by Article VI, Section V, paragraph
4 of the Constitution of 1947, unless the proceeding to that end shall be commenced within thirty days "of the accrual of the right to such review, hearing or relief," save as provided "in any other law or by Rules of the Supreme Court." By the cited article of the Constitution of 1947, 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 criminal causes where such review shall be discretionary."
Thus, the jurisdiction conferred on the newly-organized Superior Court is to afford a review, hearing and relief in proceedings in lieu of the prerogative writs, as of right in civil cases, in such manner and on such terms as the Supreme Court may by rule prescribe. The regulation of the remedies so provided is the exclusive province of the Supreme Court; the regulative power is not made subject to legislative action. The qualifying phrase "subject to law" in the general grant of the rule-making power contained in Article VI, Section II, paragraph 3 of the Constitution is not to be found here. This court has determined that the qualification "implies a limitation rather than a grant of power," and has reference to substantive law and not to legislative action. Winberry v. Salisbury, 5 N.J. 240 (1950).
The constitutional design is the provision of proceedings in lieu of the prerogative writs regulated by rule of the Supreme Court, wholly without legislative superintendence. Such is the letter and the spirit of the constitutional grant of power to regulate the newly-devised remedies in lieu of the extraordinary common-law writs. The historic function of the common-law writ of certiorari is to supervise and review the proceedings of all inferior tribunals not proceeding according to the course of the common law, for the correction of jurisdictional excesses and errors of law revealed by the record. In New Jersey, from early times, certiorari performed the function of a writ of error where error would not lie. The judicial power thus exercised was comprised within the common-law jurisdiction of the old Supreme Court, as the
successor of the King's Bench, under the ordinance of August 1, 1751, by which it came into being. State v. Court of Common Pleas, 1 N.J. 14 (1948). The power comprehends the supervision of statutory tribunals and governmental establishments, including municipal corporations. Bott v. Secretary of State, 63 N.J.L. 289 (E. & A. 1899); Specht v. Central Passenger Ry. Co., 68 A. 785 (1908); affirmed, 76 N.J.L. 631 (E. & A. 1909); Mellor ...