Gualano v. Board of School Estimate of Elizabeth School Dist.

• Decision Date: 15 January 1962
• Docket Number: No. L--11717,L--11717
• Citation: 72 N.J.Super. 7,177 A.2d 580
• Parties: Victor GUALANO, Joseph Del Vecchio, Miriam Micali and Bernard Rosenfeld, Plaintiffs, v. BOARD OF SCHOOL ESTIMATE OF the ELIZABETH SCHOOL DISTRICT and The City of Elizabeth in the County of Union, a municipal corporation of New Jersey, Defendants.
• Court: New Jersey Superior Court

Page 7

72 N.J.Super. 7

177 A.2d 580

Victor GUALANO, Joseph Del Vecchio, Miriam Micali and Bernard Rosenfeld, Plaintiffs, v. BOARD OF SCHOOL ESTIMATE OF the ELIZABETH SCHOOL DISTRICT and The City of Elizabeth in the County of Union a municipal corporation of New Jersey, Defendants.

No. L--11717.

Superior Court of New Jersey Law Division.

Jan. 15, 1962.

Jerome C. Eisenberg, Newark, for plaintiffs (Clapp & Eisenberg, Newark, attorneys).

Raymond A. Leahy, Asst. City Atty., Elizabeth, for defendants (John L. Ard, City Atty., Elizabeth, attorney).

Joseph G. Barbieri, Elizabeth, for Board of Education, amicus curiae.

FELLER, J.S.C.

This is an action in lieu of prerogative writs.

Plaintiffs contend that they are teachers under tenure, employed by the Elizabeth Board of Education; that on or about January 12, 1961 the board of education estimated the amount necessary for the school year beginning July 1, 1961 ending June 30, 1962, which amount was $6,408,248.71; that included in said budget were increases and increments for the teachers--including the plaintiffs; that on January 13, 1961 the board of education, pursuant to N.J.S.A. 18:6--49, prepared and delivered copies of said budget to each member of the board of school estimate; that on February 14, 1961 the board of school estimate, pursuant to N.J.S.A. 18:6--50, fixed and determined the amount of money necessary to be appropriated for the use of the public schools in Elizabeth for the school year 1961--1962 at the sum of $6,308,248.71; that further pursuant to N.J.S.A. 18:6--50 the board of school estimate made two certificates of said amount and delivered one copy to the school board and one copy to the City of Elizabeth on February 15, 1961; that R.S. 18:6--53, N.J.S.A., makes it mandatory that the city shall, upon receipt of the said certificate, appropriate the amount certified to it by the board of school estimate by including it in the tax ordinance, and that such amount shall be assessed, levied and collected in the same manner as money appropriated by the city for other purposes is assessed, levied and collected.

Plaintiffs further contend that on February 28, 1961 the city council voted not to appropriate the amount certified to it by the board of school estimate upon the belief that the amount so certified to it by the board of school estimate exceeded 1 1/2% Of the 'assessed ratables' of the City of Elizabeth; that the statute, R.S. 18:6--53, N.J.S.A., provides that no amount in excess of 1 1/2% Of the 'assessable ratables' of any municipality, as determined by the county board of taxation, shall be appropriated without the concurrence and consent of the governing body; that the Union County Board of Taxation had fixed $433,817,887 as the valuation of the 'assessable ratables' of the City of Elizabeth for 1961, the that the amount of $6,308,248.71, as certified to by the board of school estimate, is an amount less than 1 1/2%, and that the defendant City of Elizabeth had no authority to refuse to appropriate the said sum of $6,308,248.71; that on March 28, 1961 the board of school estimate certified to the city council that the sum of $6,147,730.86 was necessary for the school year beginning July 1, 1961, and on March 28, 1961 the city council concurred and consented to said amount; that as the result of the refusal of the City of Elizabeth to appropriate the said amount of $6,308,248.71 and as the result of the appropriation of the reduced amount of $6,147,730.86 the plaintiffs will suffer financial losses.

Thus, plaintiffs demand judgment as follows:

'(a) directing the defendant City to appropriate the sum of $6,308,248.71, being the amount certified to it by the Board of School Estimate for the school year 1961--1962, and forthwith to include such amount in the City's tax ordinance, and

(b) declaring that the language used in R.S. 18:6--53, (N.J.S.A.,) that the 'valuation of the assessable ratables * * * as determined by the county board of taxation' refers to the valuation of $433,817,887 as determined by the Union County Board of Taxation as the base upon which the one and one-half per centum limitation shall be computed.'

The defendants admit most of the facts alleged by plaintiffs but deny the interpretation of R.S. 18:6--53, N.J.S.A. as contended for by plaintiffs, and deny that the actions of defendants were in violation of said statutes, and further deny that the City of Elizabeth has no authority to refuse to appropriate the sum of $6,308,248.71. Defendants also contend that they had no knowldge or information concerning the tenure status nd losses claimed by plaintiffs, but this has been established by affidavits of plaintiffs, the contents of which have not been denied. Defendants also set up a number of separate defenses.

Plaintiffs move for summary judgment to compel the defendant City of Elizabeth to appropriate for school purposes the sum of $6,308,248.71, which is the amount certified to it by the board of school estimate for the year commencing July 1, 1961, and for the interpretation and construction of R.S. 18:6--53, N.J.S.A.

Defendants have filed a cross-motion for summary judgment based upon the allegations of the complaint and for the interpretation and construction of R.S. 18:6--53, N.J.S.A.

I.

In a separate defense defendants assert that the plaintiffs are required to exhaust their administrative remedies before making application to this court. Any failure to exhaust administrative remedies is no 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 courlt 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, 70 A.2d 77 (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, 76 A.2d 906 (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, 76 A.2d at page 908, 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, 50 A.2d 638 (E. & A. 1947); Conaway v. Atlantic City, 107 N.J.L. 404, 408, 154 A. 6, 8 (Sup.Ct.1931); Koven v. Stanley, 84 N.J.L. 446, 447, 87 A. 89 (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, 76 A.2d at page 909) '* * * the matter was of importance to the community and expeditious determination was directly in the public interest.' The court also concluded (at page 192, 76 A.2d at page 908) 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, 89 A.2d 13 (1952), the situation was somewhat analogous to that presented here. In the case at bar, the plaintiffs are seeking a determination compelling the City of Elizabeth to make an appropriation certified to it by the board of school estimate. In the Nolan case certain members of the Boulevard Commissioners of the County of Hudson brought an action in lieu of prerogative writs to compel the Board of Chosen Freeholders of the County of Hudson to raise a certain amount certified to such board of chosen freeholders by the boulevard commissioners. The court ultimately held that the defendant board was to appropriate immediately the funds requisitioned by the plaintiff commissioners. Regarding the contention that the plaintiffs had not exhausted their administrative remedies, the late Chief Justice Vanderbilt, speaking for the court, said as follows (at pages 486--487, 89 A.2d at page 17):

'* * * On the contrary, whenever the rule of exhaustion of remedies is asserted as a defense in a proceeding in lieu of prerogative writ Rule 3:81--14 both expressly and in...