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Borough of Jamesburg v. Hubbs

Decided: April 9, 1951.

BOROUGH OF JAMESBURG, A MUNICIPAL CORPORATION, PLAINTIFF-APPELLANT,
v.
HARRY L. HUBBS, DEFENDANT-RESPONDENT



On appeal from Superior Court, Law Division.

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 Burling, J.

Burling

The instant appeal was taken by the plaintiff, Borough of Jamesburg, to the Appellate Division of the Superior Court to review a judgment of the Superior Court, Law Division, Middlesex County, and while pending there the appeal was certified here on our own motion. The judgment dismissed a complaint wherein plaintiff sought review in an action in lieu of certiorari of an order of the County Court of Middlesex County denying a motion to dismiss the appeal to that court. The motion asserted a lack of jurisdiction. An appeal had been taken to the County Court from a determination of the Jamesburg Borough Council which had resulted in dismissal of the defendant, Harry L. Hubbs, from the police department of the borough.

Defendant was a police officer of the plaintiff which did not and does not now function under the provisions of the Civil Service Act (R.S. 11:19-1 et seq.). On April 5, 1950, the mayor and council of the borough by resolution promulgated a schedule prescribing hours of duty for the police department. On June 5, 1950, the chairman of the police committee of the plaintiff preferred written charges against the defendant. Hearings on these charges were held by major and council. One charge was withdrawn but the defendant was found guilty on July 10, 1950, of the remaining charges, essentially as follows: (1) defendant violated R.S. 40:47-3 in that he absented himself from duty without just cause and without leave of absence for a period exceeding five days; (2) that defendant had wilfully refused to report for duty since May 23, 1950, although requested so to report by his superior; (3) that defendant had failed to comply with the schedule of

hours of the police department adopted by the resolution of April 5, 1950, by not reporting for duty in accordance therewith; and (4) that defendant wilfully refused and neglected to attend a police committee meeting on April 19, 1950, although he had been duly notified of the time and place of that meeting. As a result of this determination defendant, by resolution of the mayor and council adopted at a meeting held on July 12, 1950, was "dismissed as a police officer or otherwise of the Borough of Jamesburg." Defendant then instituted an appeal pursuant to R.S. 40:47-10 as amended by L. 1938, c. 298, p. 691, sec. 1 (N.J.S.A. 40:47-10) to the Middlesex County Court. That court by order set the case for hearing on September 15, 1950, but prior to that date the plaintiff moved the County Court to dismiss the appeal on the ground said court had no jurisdiction under R.S. 40:47-10 as amended by L. 1938, c. 298, p. 691 sec. 1 (N.J.S.A. 40:47-10) by virtue of the fact that defendant's conviction was not for violation of rules or regulations of the police department but for violation of a state statute, viz. R.S. 40:47-3, as amended by L. 1945, c. 218, p. 723, sec. 1 (N.J.S.A. 40:47-3), and therefore review should have been sought by an action in lieu of certiorari in the Law Division of the Superior Court or by appeal to the Appellate Division of the Superior Court. The motion was dismissed. Plaintiff then filed its complaint in an action in lieu of certiorari in the Law Division of the Superior Court, seeking thereby to obtain an order setting aside the action of the County Court and declaring the latter had no jurisdiction. On defendant's subsequent motion for summary judgment, the Law Division declared that it had no jurisdiction in view of Rule 3:81-7 and entered judgment in favor of the defendant on the pleadings. Plaintiff thereupon instituted this appeal.

The primary issue involved, as it is the ruling of the Superior Court, Law Division, here appealed from, is whether review of a statutory proceeding in a County Court is to be had in an action in lieu of certiorari in the Law Division of the Superior Court or by appeal to the Appellate Division of the

Superior Court. The latter is the proper procedure and is stated in Rule 3:81-7 which provides:

"3:81-7. Appeals from Courts.

Review of statutory proceedings in the Superior Court and the County Courts, and proceedings before inferior courts of limited jurisdiction created pursuant to Article VI, Section 1 of the Constitution, shall be by appeal to the Appellate Division. Such appeal shall be taken and shall proceed in the same manner as appeals from the Trial Divisions to the Appellate Division."

It is obvious that there was a proceeding in the County Court; the contrary view is opposed to reason. "The term 'proceeding' is a very comprehensive term, and, generally speaking, means a prescribed course of action for enforcing a legal right, and hence it necessarily embraces the requisite steps by which judicial action is invoked." Words and Phrases (Perm. ed.), vol. 34, p. 83. This proceeding was a "statutory proceeding." City of Plainfield v. McGrath, 117 N.J.L. 348, 350 (Sup. Ct. 1936). The statutory power was conferred upon the court of common pleas by R.S. 40:47-10, as amended by L. 1938, c. 298, p. 691, sec. 1 (N.J.S.A. 40:47-10), which provides:

"Any member of any police department or fire department in any municipality in this State not operating under the provisions of subtitle three of the Title Civil Service (11:19-1 et seq.) who has been convicted of any violation of any of the rules or regulations of such departments by the official or board empowered to try members of such police department or fire department in such municipality, may appeal ...


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