Civil action in lieu of prerogative writs.
This is a proceeding by complaint in lieu of prerogative writs to challenge the actions of the Elizabeth Board of Education, Board of School Estimate and City Council of the City of Elizabeth resulting in the final adoption on March 29, 1961 of the municipal budget for municipal operation and public school purposes, insofar as it affects and pertains to the appropriation of money for public school purposes. Plaintiffs also seek the court's order directing defendants to proceed under and pursuant to R.S. 18:6-55 to 57 and to fix, determine, appropriate and pay to the custodian of school funds the amount of money necessary for public school purposes for the school year 1961-1962.
A consent pretrial order has been filed. All pertinent facts have been stipulated by counsel for the respective parties, and the matter came before the court on briefs and oral argument on motion for summary judgment made in behalf of plaintiffs and defendants.
The facts are that on January 13, 1961 defendant board of education prepared and delivered copies of its proposed budget for public school purposes for the school year 1961-1962 to defendant board of school estimate in the sum of $6,408,248.71. On February 14, 1961 defendant board of school estimate, after public hearing, fixed and determined the amount of money necessary for this purpose at $6,308,248.71. On February 15, 1961 its certificate to such effect was made and delivered to defendants board of
education and city council. Thereafter, at its meeting of February 28, 1961 defendant city council refused to concur in and consent to the appropriation of the amount so certified to it.
On March 27, 1961 defendant board of school estimate, without further public hearing, rescinded its actions of February 14 and 15, 1961 and made a new determination of the amount necessary for public school purposes and fixed the same at $6,147,730.86. On March 28, 1961 defendant board of school estimate made and delivered its certificate for that amount to defendants city council and school board, and on the same day defendant city council by its resolution concurred in and consented to said amount. On March 29, 1961 defendant city council formally approved and adopted the municipal budget for municipal operation and public school purposes, the latter in the amount previously approved by it at its said meeting of March 28, 1961.
Plaintiffs contend that all proceedings and actions of defendants following the certification by defendant board of school estimate on February 15, 1961 are improper, illegal, without legal sanction or authority and therefore invalid and void; that defendant city council's continued refusal to concur in and consent to the appropriation of the amount certified to it by defendant board of school estimate in February 1961 constitutes and creates an emergency within the meaning and intent of R.S. 18:6-55 et seq.; that defendant city council should be directed to reconsider its failure and refusal to concur in and consent to the amount certified to it on February 15, 1961; that in the event defendant city council should continue to withhold its concurrence and consent, defendants school board and board of school estimate should be directed to proceed forthwith in accordance with R.S. 18:6-55 et seq. to fix and determine the amount of money necessary for the use of the public school system for the public school year 1961-1962, and that defendants city council and City of Elizabeth should be directed forthwith to appropriate the sums so certified to it by defendant board
of school estimate as necessary for the operation and maintenance of the public school system for the ensuing school year 1961-1962 and to pay the same forthwith to the custodian of school funds for such purpose.
Defendants deny the legal contentions of plaintiffs and further contend that plaintiffs' request for relief is premature because plaintiffs have not exhausted their administrative remedies. Defendants have abandoned several of their separate defenses, including the fifth separate defense which alleges that the plaintiffs are not proper parties to this suit. The parties have waived service of formal notice of motion for summary judgment.
In a separate defense, defendants assert that plaintiffs are required to exhaust their administrative remedies before making application to this court. Any failure to exhaust administrative remedies is not a bar to the plaintiffs' right to bring this action. There is no question that R.R. 4:88-14 provides that, in the usual case, administrative remedies are to be exhausted before a proceeding is to be started in lieu of prerogative writs. This rule provides as follows:
"Except where it is manifest that the interests of justice require otherwise, proceedings under Rule 4:88 shall not be maintainable, so long as there is available judicial review to a county court or inferior tribunal or administrative review to an administrative agency or tribunal, which has not been exhausted."
It should be noted at the outset that the rule is not absolute by its very terms. The rule was intended as a simple rule of ordinary procedure. Ward v. Keenan , 3 N.J. 298 (1949). The rule has constantly been departed from where the interests of justice require. Reference may be had to Waldor v. Untermann , 10 N.J. Super. 188 (App. Div. 1950), which was an action for the ouster of the defendant as a member of the Board of Education of the City of Newark.
Justice (then Judge) Jacobs, in discussing this rule, relied on a school case in part when he said, at page 191, regarding the rule:
"However, it was neither jurisdictional nor absolute and was departed from where, in the opinion of the court, the interests of justice so required. See Lane v. Bigelow , 135 N.J.L. 195, 200 (E. & A. 1947); Conaway v. Atlantic City , 107 N.J.L. 404, 408 (Sup. Ct. 1931); Koven v. Stanley , 84 N.J.L. 446, 447 (Sup. Ct. 1913). In the Lane case the Court of Errors and Appeals permitted judicial determination without exhaustion of the administrative remedy available under the Zoning Act and adopted the position taken earlier in the Conaway case that the court had 'power to intervene, and in a proper case will intervene, without waiting for intermediate statutory remedies to be exhausted.' In the Koven case the Court entertained a quo warranto proceeding to determine the title to office of members of a school board without awaiting determination of the double appeal to the Commissioner and the State Board of Education. After expressing his thought that the administrative tribunals could not take dispositive action on the issue presented Justice Swayze said: 'I think it clear that where so important a question as the title of members of a school board to their office is involved, a proper exercise of discretion permits, if it does not require, the speedy adoption of the only final and effective procedure to determine the question.'"
The court, in Waldor , allowed the matter to proceed even though the plaintiff had not exhausted his administrative remedies because (as indicated at page 193) "* * * the matter was of importance to the community and expeditious determination was directly in the public interest." The court also concluded (at page 192) that the matter "* * * did not involve any questions of administrative policy, discretion or judgment." Similarly, this matter is of extreme importance to all connected with the City of Elizabeth, and expeditious determination is imperative, particularly where, as here, the budget and the tax ordinance are affected. Moreover, the questions involved do not concern any administrative policy, discretion, or judgment.
In Nolan v. Fitzpatrick , 9 N.J. 477 (1952), the situation was somewhat analogous to that presented here. In the case at bar, the plaintiffs are ...