Clapp and Jayne. The opinion of the court was delivered by Clapp, S.j.a.d.
[48 NJSuper Page 330] This is a motion by the Borough of Hasbrouck Heights to strike from the files the brief submitted by the Attorney-General on behalf of the respondent, the Division of Tax Appeals, and to deny him the right to be heard on its behalf upon the oral argument. It appears that certain assessments, placed by the borough on apartment houses owned by Grand View Gardens, Inc. and Grand View Homes, Inc., were reduced by the county board of
taxation. The Division affirmed, and the borough brings this proceeding in lieu of prerogative writ, in the nature of an appeal, R.R. 4:88-8(a), asking the court to review the Division's judgment.
On the motion the borough contends that the Division, having proceeded below quasi -judicially, has no more right to submit a brief and an oral argument in this court than would the Superior Court, Law Division, on an appeal from it; that on the contrary, only the true parties in interest, viz. , the borough and the Grand View corporations (which in fact have all submitted briefs herein), should be permitted to participate in the appeal. With supplementary briefs on the motion now before us, this issue has, with consent of counsel, been left to Judge Jayne and me to decide, Judge Hughes the third member of this part, who heard argument on the motion, having since resigned from the court.
Preliminarily it might be well to note that the former writ of certiorari , when allowed, was directed to the agency, public official or inferior court having custody of the record which was to be reviewed, thus constituting the custodian an indispensable party of the proceeding. Second Reformed Church v. Board of Adjustment , 30 N.J. Super. 338, 340 (App. Div. 1954); cf. Hodge v. Wells , 15 N.J.L.J. 172 (Sup. Ct. 1892), not officially reported. Today, in pursuance of this old practice, the custodian is nearly always joined as a party to a prerogative writ proceeding (see R.R. 1:6-1(b), referring to "the other parties" and thereby indicating that the agency is one of the parties; but see Public Service Coordinated Transport v. State , 5 N.J. 196, 208 (1950)), even though such a joinder is a mere vestigial formality if the custodian's function is only to send up a certified record.
But is that the only function of the custodian? Or is the custodian -- where it is an agency or public official -- called upon in certain cases to take an active part in the cause? That is the question presented by the motion. We think Rommell v. Walsh , 127 Conn. 16, 15 A. 2 d 6, 8-10
(Sup. Ct. Err. 1940), is an instructive opinion on the subject. There C. J. Maltbie held:
"In some appeals from administrative boards the question at issue is of consequence only to certain parties who will be directly affected, * * *. In other cases, however, there is a definite public interest to be protected. * * *
Administrative boards differ radically from courts because frequently in the performance of their duties they are representing [public interests entrusted to them by the law, as in the case of a zoning board which has the duty of establishing and maintaining a zoning system], whereas courts are concerned with litigating the rights of parties with adverse interests who appear before them. Appeals taken from decisions of such boards are in a very different category than are appeals taken from a lower to a higher court, where the lower court, having acted, ceases to have any interest in the controversy, direct or representative. * * *
To somewhat like effect it was pointed out by Justice Garrison, in an interesting discussion of certiorari practice, that in some cases a "public agency [will have] substantial interests to be subserved," and a function to perform in the litigation, and therefore a capacity in the cause, quite apart from its duty to produce the record. Hodge v. Wells , 15 N.J.L.J. 172 (Sup. Ct. 1892). In accord, see Moede v. Board of County Com'rs. , 43 Minn. 312, 45 N.W. 435 (Sup. Ct. 1890); Board of Com'rs. v. Woodford Consol. School Dist. No. 36 , 165 Okl. 227, 25 P. 2 d 1057 (Sup. Ct. 1933); In re Auditors' Report for Neville Tp. , 166 Pa. Super. 122, 70 A. 2 d 379, 384 (Super. Ct. 1950); State v. Hix , 132 W. Va. 516, 54 S.E. 2 d 198 (Sup. Ct. 1949); Board of Adjustment of City of Fort Worth v. Stovall , 147 Tex. 366, 216 S.W. 2 d 171 (Sup. Ct. 1949); State ex rel. Durner v. Huegin , 110 Wis. 189, 85 N.W. 1046, 1054, 62 L.R.A. 700 (Sup. Ct. 1901). Cf. Cefalo v. Board of Appeal of Boston , 332 Mass. 178, 124 N.E. 2 d 247 (Sup. Jud. Ct. 1955); Public Service Comm. v. Baltimore & Ohio R.R. Co. , 260 Pa. 323, 103 A. 724 (Sup. Ct. 1918). But cf. to the contrary Miles v. McKinney , 174 Md. 551,
199 A. 540, 545, 546, 117 A.L.R. 207 (Ct. App. 1938); People ex rel. Steward v. Board of Railroad Com'rs. , 160 N.Y. 202, 54 N.E. 697, 699 (Ct. App. 1899), (but see People v. Jones , 110 N.Y. 509, 18 N.E. 432 (Ct. App. 1888)); A. DiCillo & Sons v. Chester Zoning Board of Appeals , 158 Ohio St. 302, 109 N.E. 2 d 8 (Sup. Ct. 1952); Appeal of Board of Adjustment, Lansdowne Borough , 313 Pa. 523, 170 A. 867 (Sup. Ct. 1934), analogizing the agency to an auditor or master whose decision has been reversed, and claiming that it has no more right to ...