On appeal from the Superior Court, Law Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- Justice Heher. The opinion of the court was delivered by Oliphant, J.
This is an appeal from a judgment in favor of the defendant-respondent entered in the Law Division, Essex County, dismissing the complaint in a proceeding in lieu of prerogative writ instituted to test the validity of the appointment of the respondent to the position of sergeant-at-arms in the Law Division of the Superior Court in Essex County. The cause was certified here on our own motion.
On September 22, 1949, the Honorable Joseph L. Smith, Judge of the Law Division of the Superior Court, appointed the respondent, as of November 1, 1949, a sergeant-at-arms in the Law Division of the Superior Court in Essex County. The appointment was effective November 1, 1949, and called for an annual salary of $4,560. Judge Smith was assigned at that time to the Law Division of the Superior Court in Essex County.
The appointment was made under the authority of R.S. 2:16-27 and on October 27, 1949, the county freeholders, pursuant to R.S. 2:16-31, approved the salary fixed by
Judge Smith, the respondent undertook his duties on November 1, 1949, and has since held the position.
R.S. 2:16-27 provides as follows:
"In each county of the first class the circuit court judges of the several circuit courts may appoint a sergeant at arms, who shall attend daily upon such courts in the county wherein appointed during the several terms thereof. Any such appointment may be revoked at any time by the appointing judge."
By P.L. 1948, c. 375, section 1(e) it is provided that where the reference is to the Circuit Court it shall be given the effect as though it were to the Law Division of the Superior Court or a judge of the Superior Court assigned to the Law Division thereof.
The trial court dismissed the complaint on the ground that the action was barred by P.L. 1948, c. 381, which provided that no proceeding in lieu of prerogative writs shall be brought, unless it shall be commenced within 30 days of the accrual of the right to such review. This statute was declared unconstitutional by this court in Fischer v. Township of Bedminster, 5 N.J. 535 (1950), so the judgment cannot be sustained on the ground stated by the trial court.
Before proceeding to the merits of the appeal, it is necessary to dispose of a procedural question raised in limine by the respondent. He contends that if the action is in the nature of a quo warranto it can only be brought in the Law Division after leave of court first obtained because no personal claim to the office in question is made by the appellant. Respondent further contends that the appellant is seeking to test the validity of the approval of the appointment by the Civil Service Commission and therefore should have proceeded by an appeal under Rule 3:81-8 to the Appellate Division or by a petition for a declaratory judgment filed with the ...