Wagner v. Ligham

• Decision Date: 31 October 1955
• Docket Number: No. A--429,A--429
• Citation: 37 N.J.Super. 430,117 A.2d 516
• Parties: George J. WAGNER and Property Owners Protective Association, Inc., a corporation of New Jersey, Petitioners, v. Chester K. LIGHAM, State Rent Control Director of New Jersey, Defendant.
• Court: New Jersey Superior Court — Appellate Division

Page 430

37 N.J.Super. 430

117 A.2d 516

George J. WAGNER and Property Owners Protective Association Inc., a corporation of New Jersey, Petitioners, v. Chester K. LIGHAM, State Rent Control Director of New Jersey, Defendant.

No. A--429.

Superior Court of New Jersey, Appellate Division.

Argued Oct. 17, 1955.

Decided Oct. 31, 1955.

Saul A. Wittes, Elizabeth, for petitioners.

Thomas L. Franklin, Rutherford, for defendant (Grover C. Richman, Jr., Atty. Gen.).

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by

CLAPP, S.J.A.D.

This is a proceeding for a declaratory judgment, instituted in the Appellate Division pursuant to R.S. 4:88--10, challenging the validity of some 22 rules promulgated by the State Rent Control Director. A wide variety of legal issues is presented. The case comes before us on petition and answer, but without proofs.

Nowhere is it alleged or even suggested that any of these rules subject the petitioners to the slightest injury. As has been said of actions in a trial court under the Uniform Declaratory Judgments Act (N.J.S.A. 2A:16--50 et seq.), the settled policy of the law is to refuse an advisory opinion and to refrain from functioning in the abstract. New Jersey Turnpike Authority v. Parsons, 3 N.J. 235, 240, 69 A.2d 875 (1949); Proprietary Ass'n v. Board of Pharmacy of N.J., 16 N.J. 62, 72, 106 A.2d 272 (1954). The law is the same with respect to proceedings brought under R.R. 4:88--10 to nullify an agency rule. The petitioner in such a proceeding must establish, either through admission in the pleadings or by proof under R.R. 4:88--11 or otherwise, that he in fact is adversely affected by the agency rule complained of. Como Farms, Inc., v. Foran, 6 N.J.Super. 306, 317, 71 A.2d 201 (App.Div.1950); De Santo v. N.J. State Parole Bd., 17 N.J.Super. 44, 48, 85 A.2d 273 (App.Div.1951); Davis, Administrative Law, § 209, p. 714 (1951); cf. Federal Administrative Procedure Act, 60 Stat. 243, 237 (1946), 5 U.S.C.A. §§ 1009(a), 1001(g) (1950), covering, Inter alia, agency rules.

Possibly too--we need not consider the matter now--the petitioner may institute a proceeding under R.R. 4:88--10, if the agency rule threatens him with injury. Edward Hines Yellow Pines Trustees v. United States, 263 U.S. 143, 148, 44 S.Ct. 72, 68 L.Ed. 216 (1923). But clearly where a petitioner is subjected to no injury, actual or even prospective, his right under R.R. 4:88--10 to review an agency rule does not accrue on its mere adoption. Cf. R.R. 4:88--15(a); Moran, 9 Rutgers L.Rev. 640, 674 (1955); 10 Id. 37, 79 (1955).

We have no way of knowing the effect which these 22 rules have upon the petitioner George J. Wagner. The fact alleged in the petition that he is the owner of an apartment house (which allegation, it may be noted incidentally, is neither admitted nor established), is of course insufficient. As for the right of the other petitioner to...