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Carls v. Civil Service Commission

Decided: January 10, 1955.

HERBERT F. CARLS, ET AL., PLAINTIFFS-APPELLANTS,
v.
THE CIVIL SERVICE COMMISSION OF THE STATE OF NEW JERSEY, ET AL., DEFENDANTS-RESPONDENTS



For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Jacobs, J.

Jacobs

The appellants were Principal Examiners in the Department of Banking and Insurance and were reclassified by the Civil Service Commission as Examiners II. They filed a petition seeking a declaration that the Commission's action was invalid but it was dismissed by the Appellate Division for the reasons expressed by Judge Eastwood in 31 N.J. Super. 39 (App. Div. 1954). Asserting deprivation of the constitutional protection afforded by Art. VII, ยง I, par. 2, they appealed to this court. See R.R. 1:2-1(a). Cf. Sorokach v. Trusewich, 13 N.J. 363, 368 (1953); State v. Pometti, 12 N.J. 446, 450 (1953).

The appellants Carls, Del Negro, Siver and Ridgway had been Examiners and Senior Examiners in the Bureau of Banking of the Department of Banking and Insurance and

the appellants Andes, Connelly and Witbeck had held like positions in the Department's Bureau of Building and Loan. Thereafter they were promoted to the position designated as Principal Examiner. On February 19, 1952, following a recommendation of its technical staff, the Civil Service Commission eliminated the positions of Examiner, Senior Examiner and Principal Examiner and added the positions of Examiner I, Examiner II, Examiner III and Examiner IV. The appellants were assigned as Examiners II, and their civil service records were so noted on April 1, 1952. At the same time the Senior Examiners were also assigned as Examiners II, but no assignment was made to the position of Examiner I.

In June 1952 the appellants conferred with the Civil Service Commission and the Department of Banking and Insurance and complained about their reclassification; the appellants were duly heard and advanced the contention that the reclassification constituted a "demotion" and deprived them of "rights that had accrued to them." This contention was rejected and the reclassification was continued in full effect. On January 29, 1953 the appellants filed their petition in the Appellate Division. In dismissing the petition the Appellate Division held: (1) that the Commission's action should have been reviewed by appeal under Rule 3:81-8 (now R.R. 4:88-8) within the time permitted by Rule 1:2-5 (now R.R. 1:3-1), and (2) that in any event it was not improper and had not deprived the appellants of any of their substantial rights.

Our rules governing procedure in lieu of prerogative writs contain comprehensive provisions which are well designed to afford simple and expeditious modes of reviewing determinations by state administrative agencies such as the Civil Service Commission. Thus, R.R. 4:88-8 provides that review of the "final decision or action of any state administrative agency" shall be by direct appeal to the Appellate Division; under former practice, review of such decision or action would ordinarily be by certiorari or mandamus in the former Supreme Court. See West Jersey & S.R. Co. v. Board of

Public Utility Com'rs, 85 N.J.L. 468, 473 (Sup. Ct. 1914), affirmed 87 N.J.L. 170, 178 (E. & A. 1915). R.R. 1:3-1 now provides that such appeal shall be taken within 45 days of "the date of the service of the decision of the agency or of notice of the action taken, as the case may be." Similarly, R.R. 4:88-10 provides that "review of the validity of any administrative rule promulgated by any state administrative agency" shall be by direct petition to the Appellate Division for a declaratory judgment -- under former practice, review of such rule would ordinarily be by certiorari in the former Supreme Court. See Franklin Stores Co. v. Burnett, 120 N.J.L. 596 (Sup. Ct. 1938). R.R. 4:88-15(a) now prescribes a general time limitation which is applicable to proceedings instituted under R.R. 4:88-10.

The Commission's action clearly fell within the broad orbit of Rule 3:81 (now R.R. 4:88) which prescribed the simplest and most effective available mode for its judicial review; accordingly, the Appellate Division rightly took the position that there was no justifiable occasion for invoking the terms of the Declaratory Judgments Act (N.J.S. 2 A:16-50 et seq.). Cf. Abbott v. Beth Israel Cemetery Ass'n of Woodbridge, 13 N.J. 528, 543 (1953); Abelson's, Inc., v. New Jersey State Board of Optometrists, 5 N.J. 412, 417 (1950); In re Stone's Estate, 21 N.J. Super. 117, 127 (Ch. Div. 1952); Weissbard v. Potter Drug & Chemical Corp., 6 N.J. Super. 451, 455 (Ch. Div. 1949), affirmed 4 N.J. 115 (1950); Adams v. Atlantic City, 26 N.J. Misc. 259, 261 (Sup. Ct. 1948); Provident Mutual & Life Ins. Co. v. Unemployment Compensation Commission of New Jersey, 126 N.J.L. 348, 351 (E. & A. 1941); Empire Trust Co. v. Board of Commerce, etc., 124 N.J.L. 406, 409 (Sup. Ct. 1940). See Borchard, Declaratory Judgments 303 (2 d ed. 1941); Clapp, Making the Federal Rules a Part of New Jersey's Practice, 16 F.R.D. 39, 66 (1954). And we incline to agree with the Appellate Division's view that the Commission's action was reviewable by appeal under Rule 3:81-8 (now R.R. 4:88-8) rather than by petition under Rule 3:81-10 (now R.R. 4:88-10). The former was designed

to deal with so-called quasi -judicial decisions or actions adjudicating the rights of particular individuals, whereas the latter was designed to deal with so-called quasi -legislative rules governing future conduct generally. See Willapoint Oysters v. Ewing, 174 F.2d 676, 693 (9 Cir. 1949), certiorari denied, 338 U.S. 860, 70 S. Ct. 701, 94 L. Ed. 527 (1949). Cf. Abbotts Dairies, Inc., v. Armstrong, 14 N.J. 319, 331 (1954); In re Port Murray Dairy Co., 6 N.J. Super. 285, 293 (App. Div. 1950).

The Commission's action did not take the form of a rule and involved specific assignments of these particular appellants to the position of Examiner II. After the appellants' objections to the assignments were heard the Commission, presumably after due consideration, continued them in full effect. In the light of these circumstances review by appeal to the Appellate Division under Rule 3:81-8 would seem to have been indicated. However, refusal to determine the ultimate merits because the appellants mistakenly proceeded by petition for declaratory judgment under Rule 3:81-10 would be unjust and would do violence to the very purposes underlying our new judicial system. Cf. Escoett v. Aldecress Country Club, 16 N.J. 438, 451 (1954); Schnitzer and Wildstein, New Jersey Rules Service, AIV-12 (1954). The line between rule-making and adjudication is often shadowy. See In re Port Murray Dairy Co., supra; Davis, Administrative Law, 184-193 (1951); Schwartz, The Administrative Procedure Act in Operation, 29 N.Y.U.L. Rev. 1173, 1189 (1954). Cf. Frank, A Conflict with Oblivion: Some Observations on the Founders of Legal Pragmatism, 9 Rutgers L. Rev. 425, 437 (1954). And if the appellants had sought their review expeditiously the fact that they proceeded by petition rather than by appeal would have caused no harm and made ...


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