Swede v. City of Clifton

Decision Date15 October 1956
Docket NumberNo. A--11,A--11
Citation125 A.2d 865,22 N.J. 303
PartiesChester R. SWEDE and Raymond De Luca, Plaintiffs-Appellants, v. CITY OF CLIFTON and Department of Civil Service of the State of New Jersey, Defendants-Respondents.
CourtNew Jersey Supreme Court

Mervyn R. Montgomery, Clifton, argued the cause for appellants (John G. Dluhy, Clifton, attorney).

John F. Crane, Deputy Atty. Gen., argued the cause for respondent Department of Civil Service (Grover C. Richman, Jr., Atty. Gen., on the brief)

John C. Barbour, Clifton, argued the cause for respondent City of Clifton.

The opinion of the court was delivered by


We certified for appeal the judgment of the Appellate Division of the Superior Court affirming the determination of the State Civil Service Commission that the Acting City Manager of Clifton had not transcended the Civil Service Act in the appointment of Philip A. Calderaro and Richard Hornby as sergeants in the local police department.

On February 14, 1955, the City Manager of Clifton, John L. Fitzgerald, called upon the Civil Service Commission to certify eligibles for appointment to two supposed vacancies in the office of police sergeant; on February 16 ensuing the Commission certified the names of the plaintiffs Swede and De Luca, and Calderaro and Hornby, all war veterans who had qualified in that order in a competitive promotional test of merit and fitness pursuant to R.S. 11:21--3, N.J.S.A.; and two days later the Acting City Manager, William Holster, appointed No. 3 and No. 4 on the eligible list, Calderaro and Hornby, respectively, to fill the vacancies, effective March 1 thereafter.

Claiming a preferential right to appointment under R.S. 11:27--4, as amended by L.1952, c. 48, N.J.S.A., Swede, No. 1, and De Luca, No. 2, appealed to the Civil Service Commission under R.S. 11:25--1, N.J.S.A., by petition filed February 23, following. But the appellants also, as taxpayers, on March 25 ensuing, brought a proceeding in lieu of prerogative writ in the Superior Court, joined by another taxpayer, one Sahaydak, Docket L--6331--54, challenging the legal existence of the offices to which the appointments were made, for want of a creative local ordinance under R.S. 40:48--1, N.J.S.A., and alleging also that the 'purported promotional appointments were made contrary' to R.S. 11:27--4, N.J.S.A. in that the appointees 'were not first on the certified list'; and that the resolution of the local governing body purporting to designate Holster as acting city manager 'during the absence of John L. Fitzgerald, City Manager,' 'was not * * * in accordance with' R.S. 40:82--6, N.J.S.A., and Holster was not a 'properly qualified' person for this local function within the intendment of the Municipal Manager Act, R.S. 40:79--1 et seq., N.J.S.A., and 'could not be appointed' as such, 'due to the incompatibility of his position or office as City Engineer and the office or position of Acting City Manager,' and demanding judgment declaring the appointments of Calderaro and Hornby null and void, and the resolution designating the acting city manager also 'null and void, or ineffectual only insofar as it purports to constitute the basis for the acts of Holster in promoting defendants.'

This latter proceeding invoking the extraordinary judicial power exercisable by means of the old prerogative writs, now to be had of right under the 1947 Constitution, was not prosecuted and is still pending. The plaintiffs chose to pursue the administrative review afforded by the appeal to the Civil Service Commission in accordance with R.S. 11:25--1, N.J.S.A. And the selfsame issues were there raised. But the Commission ruled that the existence of the offices in question was an issue beyond its jurisdiction. The plaintiffs' claim of preference to appointment under the Civil Service Act was dismissed as ill-founded; the appointments were deemed to be within the authority conferred by R.S. 11:27--6, N.J.S.A., found to be unaffected by amendments of related sections of the act. And it was held that Holster, as acting city manager, was lawfully endowed with the power of appointment, and there had been no wrongful interference with the exercise of the function. Of this, more hereafter. The 'action taken by the Acting City Manager' was 'sustained,' and the appeals dismissed. The Commission remarked: 'It is difficult to comprehend the conclusion of counsel for the appellants that, in the event that it is decided that the appellants were entitled to appointment, then their names should be certified for appointment, despite the question relating to the creation and legal existence of the office.'

The Appellate Division affirmed the judgment. 39 N.J.Super. 366, 121 A.2d 43 (1956). The holding was that the 'existence of a position' is a question of 'fact and law to be determined by the Law Division in a proceeding in lieu of prerogative writ,' and so also the 'question of whether Holster was properly appointed to and qualified to hold the office of acting city manager, which goes to the issue of whether he was a De jure officer who could make a valid appointment.' The argument that the veterans' preferences accorded by R.S. 11:27--4, as amended by L.1952, c. 48, N.J.S.A., now applies also to promotions of the particular class was overruled; and it was found that there was no interference with the acting city manager in the making of the appointments.

The case is here by our certification on plaintiffs' motion.

Contending that an 'existent office and a De jure appointing authority are conditions precedent to the effectiveness of agency action,' it is urged that the 'forum having primary jurisdiction of the cause was the Commission,' and the Commission 'was empowered to rule on all the questions raised,' those involving the existence of the offices and the De jure title of the appointing agency as well; that plaintiffs 'have fulfilled their duty to raise and present all issues, in this proceeding, in order that the matter may be completely resolved,' citing Vacca v. Stika, 21 N.J. 471, 122 A.2d 619 (1956), and the 'ends of justice will be both served and expedited if all of the questions are disposed of on this one appeals.'

Complaint is made that a 'litigant is ofttimes best with the problem of securing adequate administrative or judicial review'; and that here plaintiffs were 'faced with several remedies': (1) a 'proceeding in lieu of prerogative writ pursuant to R.R. 4:88--1, et seq.'; (2) a 'summary review by way of petition before the Civil Service Commission under R.S. 11:25--1 (N.J.S.A.)'; and (3) a 'summary review' in the Superior Court 'purportedly in lieu of prerogative writ, provided by R.S. 11:25--4, as amended (N.J.S.A.),' and these 'three avenues of relief, although available to plaintiffs, contain possible procedural barriers to securing complete relief,' a 'fear' that 'materialized, in the opinion of the intermediate tribunal,' so it is said.

Reference is made to R.R. 4:88--14 as providing that 'no proceedings in lieu of prerogative writ shall be maintainable 'so long as there is available * * * administrative review to an administrative agency or tribunal, which has not been exhausted;" (there is no mention of the all-important qualifying clause, 'Except where it is manifest that the interests of justice require otherwise, * * *'); and it is said that Sullivan v. Roe, 18 N.J. 156, 113 A.2d 1 (1955), counsels caution 'in attempting to by-pass primary administrative review,' and 'Uncertainty as to whether cases, such as the one at bar, come within the rule' of Ward v. Keenan, 3 N.J. 298, 70 A.2d 77 (1949), 'or whether they may be affected by the admonition of the Court in the Sullivan case, presents a perplexing problem to plaintiffs.'

Foreseeing 'the possibility' that the Civil Service Commission 'might decline to rule on some aspects of the case,' 'resort to the Commission was felt necessary--'to prevail there if possible and, if unsuccessful in whole or part, to be in a position to seek review in a Superior Tribunal," and the proceeding in lieu of prerogative writ was also invoked, although it is asserted that 'the forum having primary jurisdiction of the within cause was the Commission,' and 'the controversy should have been fully heard on all issues and a final judgment entered.' And counsel now contends that 'no valid appointment may be made when either of the following facts are established, Viz., a De facto appointing officer, or a non-existent office,' and the 'Commission's action amounts to an official approval of two appointments 'in the Civil Service' even though they may be nugatory because, 1)--no office existed to which an appointment could be made, 2)--because the appointments were not made by a De jure appointing authority.'

The 'problem' was of counsel's own making. Although the then pending proceeding in lieu of prerogative writ provided a full and complete remedy in a judicial forum of general jurisdiction, not only in respect of the basic issues concerning the existence of the offices and the De jure status of the appointing officer, but as well the fulfillment of the rights of the parties under the statute pertaining to preferences for war veterans in civil service appointments, plaintiff pursued the summary administrative review afforded a citizen of the State by R.S. 11:25--1, N.J.S.A., limited as it was (and is) to relief against 'violations' by a municipal agency of 'any of the provisions' of the Civil Service Act 'in selecting persons for employment, or in the designation of an employee for appointment or in the suspension, removal, fine or reduction of employees from office.' And the insistence is that the Commission does not exceed 'its delegated powers when it determines its own jurisdiction to act within those delegated powers,' and, at all events, the 'record on appeal is factually complete' and all the issues so raised should be determined ...

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