Plainfield-Union Water Co., Application of

• Decision Date: 11 January 1954
• Docket Number: No. A--41,PLAINFIELD-UNION,A--41
• Parties: Application ofWATER CO. WATER CO. v. BOROUGH OF MOUNTAINSIDE.
• Court: New Jersey Supreme Court

Page 296

14 N.J. 296

102 A.2d 1

Application of PLAINFIELD-UNION WATER CO.

PLAINFIELD-UNION WATER CO. v. BOROUGH OF MOUNTAINSIDE.

No. A--41.

Supreme Court of New Jersey.

Argued Nov. 2, 1953.

Decided Jan. 11, 1954.

Lionel P. Kristeller, Newark, for appellant Borough of Mountainside (Jay F. Dailey, Elizabeth, attorney).

William H. Speer, Newark, for respondent Plainfield-Union Water Co.

The opinion of the court was delivered by

HEHER, J.

We remanded this cause for the correction of error in the proceedings eventuating in the challenged resolution adopted by the Water Policy and Supply Council on June 16, 1952, approving plans of the Plainfield-Union Water Company for securing an additional subsurface water supply. It was found on the earlier appeal that evidentiary data supplied by the Council's engineering staff, not the subject of testimony adduced at a hearing on notice to the parties in interest, and staff findings and conclusions thereon unsupported by evidence presented to the Council under the basic legal sanctions with an opportunity for rebuttal, were received and used by the Council in contravention of the essentials of procedural due process, and the Council's findings were deficient in their failure to disclose the considerations underlying the action taken. In short, it was pointed out that administrative action is of necessity judged by the grounds from which it proceeded according to the record, and the findings must reveal the basis of the discretionary administrative determination. In re Plainfield-Union Water Co., 11 N.J. 382, 94 A.2d 673 (1953).

After the remission of the cause accordingly, the Council gave notice of a public hearing pursuant to the judgment, to be held April 20, 1953; and when the hearing opened, the Borough of Mountainside entered an objection in writing to the jurisdiction of the Council, in terms following: The mandate 'does not require, authorize, order, or permit, any further public hearing,' but rather limits further proceedings 'to a full consideration of all legal proofs offered upon hearings concluded, the making of finding of facts and a final determination based thereon,' and thus 'there exists no authority or jurisdiction for the conduct of the proposed hearing.' The objection was overruled; and the hearing proceeded. Counsel for the borough thereupon announced that he would 'not participate in the proceedings,' although he remained and did not strictly adhere to that resolve. The Council's engineer, George R. Shanklin, was sworn as a witness and examined in chief in verification of the factual contents of his report to the Council made following the original hearing and other pertinent matters within his knowledge. An opportunity for cross-examination was extended, but refused. Counsel for the borough repeated that he would 'not participate in anywise in any public hearing,' upon the ground that a 'further public hearing' would 'violate' the mandate. The hearing was concluded and on May 18 ensuing the Council adopted a resolution embodying findings of fact establishing in its view the public need for the proposed water diversion, and approving the company's plans to that end conditioned as provided in the original resolution. See 11 N.J. 382, 94 A.2d 673.

The borough's appeal to the Appellate Division of the Superior Court was certified here for decision on our own motion.

It is now maintained: (a) that this court's mandate 'did not authorize or permit any further hearing' by the Council; (b) the proofs are insufficient to support the Council's 'findings' and 'determination'; and (c) the Council exceeded its 'statutory authority,' in that its quasi-judicial function under R.S. 13:1B--50, N.J.S.A., 'clearly excludes any privilege or right, while acting as the trier of the facts, to call its own witnesses, to take sides or to act with bias or prejudice,' and in violation of that duty it acted 'as a party' to the proceeding, and therefore the action taken is void.

I.

Thus, we have at the outset the basic question of jurisdiction.

The filing of the notice of appeal invokes the jurisdiction of the appellate tribunal. Williams v. White, 98 N.J.L. 140, 117 A. 615 (E. & A. 1922). The rules of court provide for the taking of an appeal by notice served and filed as therein specified. R.R. 1:2--8; 2:2--5; 4:88--8. And, by the same token, the appeal divests the lower court of jurisdiction save as reserved by statute or rule. See, Ashby v. Yetter, 78 N.J.Eq. 173, 78 A. 799 (Ch.1911), and the collated cases; Sobel v. Sobel, 99 N.J.Eq. 707, 134 A. 189 (Ch.1926), affirmed 100 N.J.Eq. 532, 135 A. 893 (E. & A. 1927); Moore v. Splitdorf Electrical Co., 118 N.J.Eq. 311, 179 A. 25 (E. & A. 1935); Whitfield v. Kern, 125 N.J.Eq. 515, 6 A.2d 411 (E. & A. 1939). Jurisdiction is restored by the mandate of the appellate court, but not in derogation of the judgment of the appellate tribunal embodied therein. The lower tribunal's exercise of jurisdiction thereafter is Ex necessitate conditioned by the terms of the judgment on appeal; and so the Council here was bound by the judgment of this court and under a peremptory duty to carry it into execution according to the mandate.

The mandate is a judicial precept that must be enforced as written. Relief from its directions, even though manifestly erroneous, can be had only in the appellate court whose judgment it is. Isserman v. Isserman,2 N.J. 1, 65 A.2d 508 (1949); Oswald v. Seidler, 138 N.J.Eq. 440, 47 A.2d 437 (E. & A. 1946); Kurth v. Maier, 134 N.J.Eq. 511, 36 A.2d 202 (E. & A. 1944); Wemple v. B. F. Goodrich Co., 127 N.J.Eq. 333, 12 A.2d 716 (E. & A. 1940); Briggs v. Pennsylvania R. Co., 334 U.S. 304, 68 S.Ct. 1039, 92 L.Ed. 1403 (1948). The subordination of the interior tribunal is of the very essence of the appellate function; the mandate is the process directed to the execution of the appellate judgment, and is therefore a command to be obeyed. The reinvestiture of jurisdiction in the inferior tribunal is in consonance with that judgment, and qualified accordingly. The appellate judgment becomes the law of the case; and the mandate is the direction for conforming judicial action. In re Sanford Fork & Tool Co., 160 U.S. 247, 16 S.Ct. 291, 40 L.Ed. 414 (1895). The duty is simply one of compliance with the precept. The governing principle is embodied in the rules of court. The mandate 'shall merely provide that the judgment, order or determination appealed from or sought to be reviewed or enforced is affirmed, reversed or modified, and that the record shall be remitted to the court below to be there proceeded with in accordance with the rules and practice relating to that court, consistent with the opinion of the appellate court.' R.R. 1:9--1; 2:9--1. But there was no departure here from the appellate command--no deviation from the principle and direction of the judgment comprised in the opinion of the court.

The original determination of the Council was assailed as a judgment reached in disregard of the essentials of procedural due process. Evidentiary matter had come in without the sanction of an oath and the opportunity for cross-examination and rebuttal. The corrective mechanism was necessarily a rehearing and redetermination conforming to the fundamentals of a judicial hearing delineated in this court's opinion; and there was no injunction, express or implied, against the taking of evidence pertinent to the inquiry. This the Council was free to do, as if, when it still had jurisdiction of the subject matter, either prior to decision or thereafter before it had lost control of the proceeding, on its own motion or at the instance of a party in interest, it had undertaken a rehearing to receive new evidence in aid of the execution of the statutory policy. This court's precept did not forbid such an inquiry. Indeed, for basic deficiencies there was no review of the Council's action on the merits, but rather a remand of the cause for the correction of the error and the making of new evidence under the sanctions inherent in due process, and determination accordingly.

The remand was made for 'further proceedings' 'consistent' with the opinion of this court; and this plainly means a rehearing of the issues as if the former hearing had not been had. To antithesize, consistency is the criterion of conforming conduct; inconsistency denotes the proscribed area of nonconformative action. A question put to rest by the mandate cannot be relitigated. But, absent a limitation of the rehearing to specific issues, the whole is to be heard anew in keeping with the principles of law set by the opinion of the appellate tribunal. This would seem to be sound logic and good law. Protomastro v. Board of Adjustment of City of Hoboken, 3 N.J. 494, 70 A.2d 873 (1950); United States v. Morgan, 307 U.S. 183, 59 S.Ct. 795, 83 L.Ed. 1211 (1939); Briggs v. Pennsylvania R. Co., cited supra; Federal Communications Commission v. Pottsville Broadcasting Co., 309 U.S. 134, 60 S.Ct. 437, 84 L.Ed. 656 (1940); People of State of Illinois ex rel. Hunt v. Illinois Cent. R. Co., 184 U.S. 77, 22 S.Ct. 300, 46 L.Ed. 440 (1902); Eastern Cherokees v. United States, 225 U.S. 572, 32 S.Ct. 707, 56 L.Ed. 1212 (1912). The difference is between a remand with specific limitations and general directions for a rehearing. Rogers v. Hill, 289 U.S. 582, 53 S.Ct. 731, 77 L.Ed. 1385, 88 A.L.R. 744 (1933); In re Sanford Fork & Tool Co., cited supra. A remand may be made 'to permit further evidence to be taken or additional findings to be made upon essential points. * * * The 'remand' does not encroach upon administrative functions. It means simply that the case is returned to the administrative body in order that it may take further action in accordance with the applicable law. * * * Such a remand does not dismiss or terminate the administrative proceeding. If findings are lacking which may properly be made upon the evidence already received, the court does not require...