Carluccio v. Ferber, A--157
Citation | 18 N.J.Super. 473,87 A.2d 439 |
Decision Date | 24 March 1952 |
Docket Number | No. A--157,A--157 |
Parties | CARLUCCIO v. FERBER, Director of Motor Vehicles et al. |
Court | New Jersey Superior Court – Appellate Division |
Stephen Mongiello, Hoboken, argued the cause for appellant.
John J. Kitchen, Woodbury, argued the cause for respondent (Theodore D. Parsons, Atty. Gen. Attorney).
Before Judges McGEEHAN, JAYNE and WM. J. BRENNAN, Jr.
The opinion of the court was delivered by
WILLIAM J. BRENNAN, Jr., J.A.D.
Plaintiff, alleging that he is an honorably discharged veteran of World War I entitled to the protection afforded by the Veterans' Tenure Act (R.S. 38:16--1 et seq., N.J.S.A.), complains of the termination by defendant Ferber, Director of Motor Vehicles, of his agency for the registering of motor vehicles, issuing registration certificates and licensing of drivers, to which he was designated pursuant to R.S. 39:3--3 (L. 1921, c. 208), N.J.S.A., by a predecessor in office of Ferber, and of Ferber's designation of defendant, Aniello, to replace him.
Ferber's action was taken by letter of December 7, 1950 advising plaintiff that his 'authority to act as agent is hereby revoked as of December 31, 1950.' Plaintiff filed an amended complaint in the Law Division seeking a judgment restoring him as agent and setting aside Aniello's designation in his place. Upon motion of Ferber the action was dismissed, without prejudice, 'for the reason that the Court lacks jurisdiction of the subject matter.' Ferber's motion was grounded upon the contention that 'plaintiff seeks review in his complaint of a decision or action of a state administrative agency' reviewable not by complaint filed in the Law Division pursuant to Rule 3:81--2 but by appeal to the Appellate Division under Rule 3:81--8. Plaintiff appeals from the order of dismissal which was entered November 14, 1951, and also 'from the final decision or action of Martin J. Ferber, administrative agent, dismissing the above plaintiff on December 31, 1950 in accordance with Rule 3:81--8.'
Whether plaintiff's challenge to Ferber's action was reviewable in the circumstances by complaint under Rule 3:81--2 or by appeal under Rule 3:81--8 it is not necessary for us to decide. His claim to relief is rested solely upon his alleged veteran's status. The question whether the Veterans' Tenure Act embraces agents designated under R.S. 39:3--3, N.J.S.A., has been fully argued in the briefs and we shall therefore determine it. It is our opinion that an agent designated under R.S. 39:3--3, N.J.S.A., is not a person 'holding any employment, position or office under the government of this State' and 'receiving a salary from such State' within the intendment of the Veterans' Tenure Act.
It is settled that 'The legislature may by the manner in which it establishes or reconstructs a public office and by the character of authority which it gives in the supervision thereof indicate a purpose to exclude the employees from the application of the Veterans' Tenure Act.' Barringer v. Miele, 6 N.J. 139, 77 A.2d 895, 897, (1951). The manner in which the Legislature established the office of Director of Motor Vehicles as regards the latter's agents of plaintiff's class and the character of the authority given to the Director's selection, supervision and termination of authority of such agents plainly evince a legislative purpose to exclude the agents...
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...plurality opinion in Elrod --when he was a judge on the appellate division of the New Jersey Superior Court. In Carluccio v. Ferber, 18 N.J.Super. 473, 87 A.2d 439 (App.Div.1952), a former motor vehicle inspection agent sought reinstatement to his position, arguing that as a veteran the sta......
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