On appeal from decision and determination of the New Jersey Highway Authority.
For remandment -- Chief Justice Vanderbilt, and Justices Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- Justices Heher and Oliphant. The opinion of the court was delivered by Burling, J.
[19 NJ Page 273] This is a civil action in which the parties have labeled it as being within the scope of the former prerogative writs brought to test the validity of tolls levied by the New Jersey Highway Authority (hereinafter called the Authority). The complaint in the form of a petition of appeal, was filed by Edward J. McKenna, "as Mayor and taxpayer of the Town of Irvington," and by the Town of Irvington, a municipal corporation, under R.R. 4:88-8, in the Superior Court, Appellate Division. After preliminary proceedings had been taken there but before final argument, the matter was certified by us on our own motion.
At the oral argument, the adequacy of these proceedings adjectively was questioned. We find the record inadequate for present disposition, but in order that a remand may be effectual reference herein to the proper course of procedure and as well to the issues and salient facts, as presently exhibited, is advisable.
The plaintiffs seek to proceed by action in lieu of prerogative writ. Former prerogative writs have been superseded. N.J. Const. 1947, Art. VI, Sec. V, par. 4; R.R. 4:88-1. In lieu thereof review, hearing and relief has been afforded in the Superior Court under rules promulgated by this court. N.J. Const. 1947, Art. VI, Sec. V, par. 4, supra; R.R. 4:88-2.
The plaintiffs as is disclosed by their pleading and on the covers of their briefs and appendix in relation to the caption of the case, laid the present matter as an appeal under R.R. 4:88-8, relating to the review of the "final decision or action of any state administrative agency." It seems, however, that this proceeding was more properly within R.R. 4:88-10, relating to review of "any administrative rule promulgated by any state administrative agency."
Certiorari is an extraordinary common-law remedy of ancient origin, and has been said to be confined to review of judicial actions. Ferris, Extraordinary Legal Remedies (1926), sec. 155, p. 177. Cf. 10 Am. Jur., Certiorari, secs. 2, 3, p. 524. However, in New Jersey, the powers of the Court of King's Bench, the English court existing prior to the American Revolution, were inherited by our former Supreme Court, which was created in colonial days (see Edward B. McConnell, A Brief History of The New Jersey Courts, 7 N.J.D. (1954) 349, 350). These powers included superintendence over civil corporations, magistrates and other public officers, and in New Jersey the use of the writ in this respect was frequently exercised. Clarence T. Atkinson, Certiorari, 19 N.J.L.J. 132 (1896). Cf. Fischer v. Twp. of Bedminster, 5 N.J. 534, 539-540 (1950); Tucker v.
Board of Chosen Freeholders of Burlington, 1 N.J. Eq. 282, 287 (Ch. 1831). It has been said that
"[w]hile the statement has frequently been made by our court [referring to the former Supreme Court] that the writ lies to review proceedings of a judicial or quasi-judicial character, yet it is extensively used to review the validity of ordinances and of by-laws, which are clearly merely legislative in character * * * and to review various other acts of officers, boards and tribunals where it is difficult to discover the judicial nature of the proceedings held subject to the review * * *." Harris, Pleading and Practice in New Jersey (rev. ed. 1939), sec. 735, p. 745.
Cf. 1 Bradner, New Jersey Law Practice (1940), sec. 533, pp. 495 et seq. The power was early established in great strength. In 1831 the former Court of Chancery held that if a public board had power to act the Court of Chancery could "take no cognizance of the complaints" because the "right of supervision and correction is in another tribunal" namely the former Supreme Court. Tucker v. Board of Chosen Freeholders of Burlington, supra, 1 N.J. Eq., at page 287. Chancellor Vroom stated in the Tucker case, supra, that the "principle is universal, that wherever the rights of individuals are invaded by the act of persons clothed with authority to act, and who exercise that authority illegally, the persons aggrieved must seek redress by Certiorari." Ibid. We have settled these principles in Fischer v. Twp. of Bedminster, supra, 5 N.J., at pages 539-541.
Mandamus on the other hand was a high prerogative writ at common law directed to any natural person, corporation or inferior court within the jurisdiction requiring performance of some act. Ferris, Extraordinary Legal Remedies (1926), sec. 187, p. 218. It could not be used as a remedy for threatened violation of duty, for which injunction was the proper remedy. Id., sec. 193, p. 225. However mandamus would issue in conjunction with a judgment on certiorari, that is, where the invalidation of municipal action occurred a writ of mandamus would issue to ensure complete relief to the plaintiff. See Campbell v. Board of Adjustment of Borough of South Plainfield, 118 N.J.L. 116, 117 (Sup.
Ct. 1937); Gabrielson v. Borough of Glen Ridge, 13 N.J. Misc. 142, 148 (Sup. Ct. 1935). Cf. Payne v. Borough of Sea Bright, 14 N.J. Misc. 756, 758 (Sup. Ct. 1936). The writ of mandamus lay not to review but to compel. Harris, Pleading and Practice in New Jersey (rev. ed. 1939), sec. 707, p. 719. Compare State v. Holliday, 8 N.J.L. 205, 205-209 (Sup. Ct. 1825).
With these basic principles in mind, examination of R.R. 4:88-8 is in order. It is within this rule, R.R. 4:88-8, supra, that the plaintiffs seek relief.
In Carls v. Civil Service Commission, 17 N.J. 215, 219-220 (1955), we noted that R.R. 4:88-8 was generally "designed to deal with so-called quasi-judicial decisions or actions adjudicating the rights of particular individuals," whereas R.R. 4:88-10 "was designed to deal with so-called quasi-legislative rules governing future conduct generally." However, we pointed out in that case that the line between adjudication and rule-making was often shadowy and that litigants should not be prejudiced where they proceeded in timely fashion under one of the rules though they should properly have proceeded under the other. Since the plaintiffs' petition in the instant matter embodies an attack on the legal validity of administrative rules or ...