Civil action in lieu of prerogative writs.
[74 NJSuper Page 162] This is an action in lieu of prerogative writs. An amended complaint and amended answer have been filed. Several motions and counter-motions have been made, and oral arguments have been heard on various dates.
The several questions can be disposed of in the determinations of the plaintiffs' motion for summary judgment and the defendants' cross-motion for summary judgment. The allegations of the fourth and fifth counts of the amended complaint in effect have been disposed of in the case of Crook v. Township of Clark and Joseph Smith et al. , 74 N.J. Super. 148 (Law Div. 1962), which decision recently rendered and the issues raised in these two counts are now moot.
At the general election on November 3, 1959 the voters of the Township of Clark adopted Plan F of the Optional Municipal Charter Law, hereafter referred to as the Faulkner Act. On that date the Township of Clark was not operating under Title 11 of the Revised Statutes , hereafter referred to as the Civil Service Act.
Pursuant to the provisions of the Faulkner Act the first election of officers (mayor and council) was held at the general election on November 8, 1960. On that date also the voters of the Township of Clark adopted the provisions of the Civil Service Act.
Prior to January 1, 1961 the Township of Clark was operating under the commission form of government, but on that date the township commenced operating under the Faulkner Act in accordance with the referendum of November 3, 1959 and the mayor and council took office, having been elected on the said November 8, 1960. Thus, January 1, 1961 became the effective date of the Optional Plan F form of government for the Township of Clark.
On June 27, 1961 Joseph J. Smith, Director of the Department of Public Works and Engineering, appointed plaintiff Alfred J. Loboda building inspector, effective June 30, 1961, for a term ending December 31, 1964. On said date defendant John Doenzelmann was performing the duties of said office, and had been doing so continuously since his appointment on or about April 3, 1951, and thus he was employed for more than one year prior to August 22, 1960, which was the date that the petition for the adoption
of Civil Service was filed. The said defendant Doenzelmann refused to vacate the office and claimed the tenure protection of N.J.S.A. 11:21-5.2 and N.J.S.A. 11:21-6 because of the adoption of the Civil Service Act on November 8, 1960.
On said date, June 27, 1961, Joseph J. Smith also appointed plaintiff Eugene J. Schiller plumbing inspector, effective June 30, 1961, for a term ending December 31, 1964. On said date defendant Karl Kummer was performing the duties of said office and had been doing so continuously since his appointment on or about May 20, 1952, and thus was employed for more than one year prior to August 22, 1960, which was the date that the petition for the adoption of Civil Service was filed. The said defendant Kummer refuses to vacate the post and also claims the tenure protection of N.J.S.A. 11:21-5.2 and N.J.S.A. 11:21-6, also because of the adoption of the Civil Service Act on November 8, 1960.
On the same date, namely, June 27, 1961, the said Joseph J. Smith also appointed plaintiff Muriel E. Nadler clerk in the Department of Public Works and Engineering, effective July 3, 1961, for a term ending December 31, 1964. On said date defendant Norma B. Davenport was performing the duties as said clerk and had been doing so continuously since May 16, 1960. This defendant commenced work as record clerk in the township on June 8, 1953, and on May 20, 1954 she was appointed deputy township clerk and on May 22, 1958 was appointed principal clerk. Thus, this defendant was also employed by the township for more than one year prior to August 22, 1960, which was the date the petition for adoption of Civil Service was filed. This defendant also refuses to vacate the post and claims tenure protection of N.J.S.A. 11:21-5.2 and N.J.S.A. 11:21-6 because of the adoption of the Civil Service Act on November 8, 1960.
Plaintiffs contend that under the provisions of the Faulkner Act (N.J.S.A. 40:69A-207) which became effective
in the Township of Clark on January 1, 1961, vacancies occurred in the above three posts on said date and the terms of office and rights thereto of defendants were terminated by operation of law on said January 1, 1961, since defendants were not appointed on or after January 1, 1961. Plaintiffs further contend that they were duly appointed on June 27, 1961 and are entitled to assume the duties of said offices. The defendants refuse to vacate these posts and contend that they had been performing their duties for more than one year prior to August 22, 1960, which was the date that the petition was filed for the adoption of Civil Service in Clark Township, and claim the tenure protection of the Civil Service Act because of its adoption by the voters on November 8, 1960.
There is no issue of fact involved, and plaintiffs and defendants move for summary judgment.
Defendants Doenzelmann, Kummer and Davenport have filed a fourth separate defense to the amended complaint alleging that plaintiffs have failed to exhaust their administrative remedies and therefore are not entitled to any adjudication against the Civil Service Commission or the Department of Civil Service in these proceedings.
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 will 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.
The court in Waldor v. Untermann , 10 N.J. Super. 188 (App. Div. 1950), 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, the questions involved in the case at bar do not concern any administrative policy, discretion or judgment, and in Nolan v. Fitzpatrick , 9 N.J. 477 (1952), the court stated, at pages 486-487 as follows:
"What are the requirements of justice in the instant case? The question presented in this case is solely one of law. Any determination of that question either by the Director of the Division of Local Government, N.J.S.A. 40:2-53, or by the Division of Local Government, N.J.S.A. 52:27 BB would clearly be subject to judicial review, N.J.S.A. 40:2-53 and N.J.S.A. 52:27 BB -20. On such judicial review of a question of law the opinions of these administrative tribunals would not be persuasive as they would be on questions of fact within their purview. The only result of requiring an exhaustion of administrative remedies where only a question of law is in issue would be useless delay, and this in the interest of justice cannot be countenanced. The case thus presents another instance (i.e. , where the disposition of the matter depends solely on the decision of a question of law) in addition to the two situations specifically stated in Ward v. Keenan where under Rule 3:81-14 the [now R.R. 4:88-14] interests of justice do not require the exhaustion of administrative remedies."
What was said above in Nolan is equally applicable to the case at bar. The question involved in this case is solely a question of law. The only result of requiring an exhaustion of administrative remedies would be useless delay. Therefore, because of the nature of the ...