On appeal from the Appellate Division of the Superior Court.
For reversal -- Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- Chief Justice Vanderbilt. The opinion of the court was delivered by Heher, J.
[18 NJ Page 157] This proceeding in lieu of certiorari to review the removal, November 18, 1953, of the plaintiff Sullivan
from the office or position of Supervisor of Accounts of North Bergen, a commission-governed municipality, R.S. 1937, 40:70-1 et seq., was dismissed by the Law Division of the Superior Court for failure to exhaust the administrative process according to R.R. 4:88-14. The Appellate Division reversed the judgment, holding in an unreported opinion that even though the Civil Service Act, R.S. 1937, 11:19-1 et seq., was in force in the municipality, and the position was in the classified service, and "there was available to the Supervisor an administrative remedy" in the form of an "appeal from and review of such removal and full hearing" before the Civil Service Commission, R.S. 11:22-38 et seq., R.S. 11:25-1, 2, 3, "jurisdiction to appoint and to remove" the supervisor "inheres" in the departmental director, here the Director of Revenue and Finance, and for want of the essence of the public hearing on notice prescribed by R.S. 40:72-7, as amended by L. 1953, c. 37 ("no proofs having been adduced, even informally, of the charges made against him," and the "statement of those charges was so completely vague as not even to amount, in our opinion, to the 'written statement of the reasons for such action' required as a condition for removal by the Civil Service Act itself, R.S. 11:22-38, 46"), the "jurisdiction of the Director to remove the employee, if it existed at all, was merely colorable," and the interests of justice required the "speedy solution" of the "questions raised" by this proceeding "without the necessity of exhaustion of administrative remedy in the usual course," and so it was error to dismiss the complaint. Indeed, it is said that "If there be charges but no proof," which was found to be the case here, "the action is void." The judgment of the Law Division was reversed; "and since," it was found, "the record settles facts which * * * entitled the plaintiff to summary judgment in his favor," there was a remand for the entry of an "appropriate judgment amounting to a nullification of the removal proceedings against him."
Summary judgment was accordingly entered in the Law Division of the court in favor of the plaintiff Sullivan, declaring
the "removal proceedings a nullity in all respects and for nothing holden," and directing the reinstatement of plaintiff to his position forthwith and the payment of "back salary" from the time of his removal to the date of the entry of the judgment.
Judge Pindar, dissenting, suggested that the removed public servant has a wholly adequate review under the Civil Service Act, R.S. 11:22-38 et seq., supra, and so this judicial review of the defendant director's "administrative" act transgressed the policy of prior exhaustion of administrative remedy embodied in R.R. 4:88-14.
The case is here on defendant's appeal of right under Article VI, Section V, paragraph 1(b) of the 1947 Constitution.
The judgment of the Appellate Division proceeds on the fundamental misconception that for want of a hearing according to the requirements of due process the removal was void ab initio; but even on this hypothesis the dismissal of the proceeding itself without a disposition on the merits, and the judgment for "back salary," cannot be justified.
Dual protection against removal save for cause, in nature the same, is accorded the civil servant of a commission-governed municipality subject to the State Civil Service Law who is within the favored class, but the removal procedure in such cases is for obvious reasons of policy according to the mode prescribed by the Civil Service Act.
The Walsh Act so provides in terms. Any officer or employee appointed by the board of commissioners is subject to removal "for cause, after public hearing, provided its action shall be taken in accordance with the civil service and tenure of office laws in municipalities where such laws have been adopted or are applicable and such action shall be subject to review by a proceeding in lieu of prerogative writ." R.S. 40:72-7, as amended by L. 1953, c. 37.
The Civil Service Law, R.S. 11:22-38, ordains that "No officer, clerk or employee holding a position in the competitive class shall be removed, discharged, fined or reduced," except as therein ...