Goldmann, Freund and Foley. The opinion of the court was delivered by Foley, J.A.D.
Plaintiff appeals from a decision of the Acting Director of the Division of Motor Vehicles denying his application for renewal of a vehicle identification card granting him special parking privileges pursuant to N.J.S.A. 39:4-204 et seq.
Plaintiff, 49 years of age, is employed by the Division of Motor Vehicles in Trenton as a hearing examiner. He resides in Hopewell, New Jersey. He commutes by automobile to and from his place of employment, and is often required to walk a considerable distance from a parking area to his office.
In 1950 the then Director of the Division of Motor Vehicles granted plaintiff a special vehicle identification card under N.J.S.A. 39:4-204 et seq. , as a person "otherwise disabled in any manner rendering it difficult and burdensome for him to walk." The card was issued on the basis of a medical disability discharge from service in the United States Army during World War II, his disability being described as pes planus third degree, more commonly known as flat feet. The permit was renewed annually by the Director until May 1961.
On June 15, 1959 defendant acting Director issued a directive interpreting the statutory phrase "has been otherwise disabled in any manner rendering it difficult and burdensome to walk" to mean that "the difficulty and burdensomeness caused by the physical disability shall be equivalent to that experienced by a person with an amputation of a leg or an arm, two legs or two arms, or any combination thereof." This definitive interpretation was based on the provisions of N.J.S.A. 39:4-204 fixing the classes of persons entitled to special vehicle identification cards as follows:
"The word 'amputee' as employed herein shall include any person, male or female, who has sustained an amputation of either or both legs, or of parts of either or both legs, or of either or both arms, or parts of either or both arms, or who has been otherwise disabled in any manner rendering it difficult and burdensome for him to walk."
The directive of June 15, 1959 ordered a revision of the form of application for the card, and required applicants to be examined by a medical doctor chosen by the Division before the application would be considered. The application form was revised in conformity with the directive.
On March 29, 1961 the Acting Director promulgated a regulation requiring, in the discretion of the Director, that the applicant for a renewal submit a statement from a registered physician of this State, recertifying qualification for the card. On November 29, 1961 the Attorney General issued Formal Opinion No. 31 confirming the legality of the Acting Director's interpretation of the statute, as above recited.
On October 13, 1961 plaintiff filed an application for renewal of his card on the form provided by the Division, which contained a certification by Dr. Myron Bash that he had examined plaintiff on October 2, 1961, and found that he suffered from flat feet third degree, a disability that rendered it difficult and burdensome for him to walk. Since plaintiff was not an amputee, the doctor certified further "that the disability above affects the applicant's ability to walk to at least the same degree as that experienced by an amputee."
When, by November 3, 1961, the application had not been acted on by defendants, plaintiff commenced an action in lieu of prerogative writs to compel the issuance of the card to him. While the suit was pending, plaintiff, at the request of defendants, submitted to a physical examination by Dr. Paul J. Finegan, who reported that he found plaintiff to be "in good health with sole disability limited to both lower extremities. Examination shows him to have a third degree flat foot which is correctable by proper support. He is wearing unsatisfactory shoes with metal arch supports which do not fit him or give him proper support."
After issue was joined, the Law Division dismissed the action without prejudice -- evidently upon the ground that plaintiff had failed to exhaust his administrative remedies -- and remanded the matter to the Division of Motor Vehicles for a hearing. On January 31, 1962 the hearing was held before the Acting Director, on stipulation of facts and argument of counsel, and resulted in the denial of plaintiff's application. The ...