The plaintiff, Joseph Testa, a resident and taxpayer of the Town of Bloomfield, brings this action in lieu of prerogative writs to test the validity of a town ordinance. At the pretrial hearing a complaint against Theodore Hock, the Collector-Treasurer of the Town of Bloomfield, was dismissed. Furthermore, at the time of pretrial, the facts as alleged in paragraphs 2 and 3 of the pretrial order were the facts to be stipulated in this case, and the case was agreed by the litigants to be decided on the briefs as to the questions of law and facts as stipulated.
The plaintiff, Testa, is a member of the Police Department of Bloomfield and was a member of the department before and subsequent to the enactment of the alleged ordinance. The said ordinance created the position of parking violations officer in the Division of Revenue, Department of Finance, of the Town of Bloomfield. It was introduced and passed on first reading on September 8, 1959. Notices were published of the same and a public hearing was held on September 21, 1959. No constituent appeared to object to the passage of the ordinance, and it was finally adopted on the said date. However, one of the councilmen objected to section 2 of the ordinance, which provision places the parking violations officer in the Division of Revenue. The councilman argued that said officer should be placed in the Police Department. Notice of the adoption of the ordinance was published in the Independent Press on September 24, 1959, and the ordinance
became effective on October 5 of the same year. A civil service examination was called for the position, and a certified list of eligibles was delivered to the town, wherein three persons were certified. The plaintiff commenced his action on or about April 11, 1961. The ordinance provides that the duties of the parking violations officer are:
"1) To patrol assigned area.
2) To inspect the operation of parking meters.
3) To see that vehicles are properly parked.
4) To issue tickets to parking offenders.
The plaintiff does not contend that the Town of Bloomfield did not have the authority to create the position, but apparently claims the illegality and ultra vires action of the municipality in the placing of the new employees outside the Police Department.
The defendant municipality contends that the plaintiff is barred by R.R. 4:88-15(a) which provides:
"(a) No proceedings for review, hearing and relief in lieu of prerogative writs shall be commenced, unless it shall be commenced within 45 days of the accrual of the right to such review, hearing or relief, except as provided in ...