Volume 126 — New Jersey Law Reports

<p>“The Unemployment Compensation Commission and its director have been named as parties defendant since they are the administrative officials designated by the Unemployment Compensation law. The Attorney-General was named a party because it is contended by the plaintiff that if the law is applicable to general and special agents it is unconstitutional. The Uniform Declaratory Judgments law requires that he be named as a party where a statute is alleged to be unconstitutional. R. S. 2:26-72. A general agent and eight special agents are made parties defendant as parties having an interest which would be affected by any declaration in this cause.</p> <p>“The commission and the director have appeared specially to deny the jurisdiction of the court, and to move for a dismissal of the complaint upon the grounds that the cause .of action is against the State of New Jersey in so far as they are concerned, and that a cause of action for a declaratory judgment does not lie as to them without the consent of the state.</p> <p>“The Attorney-General moves to strike and dismiss the complaint upon the grounds that a justiciable controversy does not exist, that the plaintiff has other and adequate remedy, and that any judgment entered in these proceedings would not terminate the uncertainty or controversy giving rise to the proceedings.</p> <p>“Voluminous and exhaustive briefs have been submitted. I have carefully examined and studied same.</p> <p>“For the purpose of disposing of this motion I need be concerned with only two grounds, that the cause of action is against the state and therefore does not lie, and that the plaintiff has other and adequate remedy.</p> <p>“Many authorities and cases are cited to me by the plaintiff but the Supreme Court of this state, speaking through Mr. Justice Heher in Empire Trust Co. v. Board of Commerce and Navigation, 124 N. J. L. 406, has disposed of both questions. As to suits against a state agency, and it must be admitted that the Unemployment Compensation Commission is a state agency, the court said: ‘It is embedded in our jurisprudence that the state is not suable in its own courts without its consent, and that a suit brought against a state agency is, in fact, a suit against the state if the judgment sought would operate to control the action of the state or subject it to liability/ citing Strobel Steel, &c., Co. v. State Highway Commission, 120 Id. 298. It is argued that this rule applies only where the state might be required to pay funds out of its treasury, or where state funds or property might be affected and that no such situation is presented here. The contention, if sound, is effectively met by the decision of the Supreme Court of North Carolina in The Prudential Insurance Company of America v. Powell et al., 217 N. C. 495, in a case similar to the instant one. Provision is made in our Unemployment Compensation law for the assessment, levy and collection of compulsory contributions by employers as defined in the act. The moneys collected are held in a separate state fund and are disbursed by the state treasurer on requisitions of the Unemployment Compensation Commission. The members of the commission are appointed by the Governor. The contributions to the fund are not voluntary. They are compulsory and constitute a tax. The plaintiff seeks by this proceeding to have judicially determined whether certain of its agents are employes for the purpose of ascertaining its tax liability. The state then, through its aliar ego, the Unemployment Compensation Commission is the real party in interest for the amount the state is entitled to collect from the plaintiff is directly involved and the judgment sought to be obtained here would operate to control the action of the state with respect to the collection of this tax.</p> <p>“As to the ground that the plaintiff has other and adequate remedy, the Supreme Court again in Empire Trust Co. v. Board of Commerce and Navigation et al., supra, has said that where the injury complained of its remediable by certiorari, the Declaratory Judgments Act is not available.</p> <p>“While the Unemployment Compensation law does not provide a method of review whereby an employer or employe may in advance of contributions litigate the question of liability therefor or the correct amount thereof, the act does set forth the procedure to be followed in interpreting the law and in enforcing its provisions. It is elemental that a review of the commission’s determinations may be had by writ of certiorari to the Supreme Court. The Declaratory Judgments Act cannot be invoked as an alternative remedy. Empire Trust Co. v. Board of Commerce and Navigation, supra.</p> <p>“The motion to strike out and dismiss the complaint will be granted and an order to that effect may be presented.”</p>

“This is an application for a certiorari to review a delinquent tax sale held by the Collector of Taxes of the City of Paterson. It is alleged that the sale is tainted with fraud, and so is a nullity, certainly as to the particular properties involved in the asserted fraudulent conduct.