Adams v. Atl. County.

Decision Date20 May 1947
Citation53 A.2d 168
PartiesADAMS v. ATLANTIC COUNTY.
CourtNew Jersey Circuit Court

OPINION TEXT STARTS HERE

Action by Bartholomew George Adams against the County of Atlantic, a municipal corporation of the State of New Jersey, to recover the difference between the amount of plaintiff's compensation as a member of the United States Naval Reserve and what he would have received had he continued in county employment in the position of investigator in the office of Prosecutor of the Pleas. On motion by defendant to strike the complaint.

Motion to strike the complaint denied.

Coulomb, McAllister & Hunter, of Atlantic City, for plaintiff.

Edmond C. Gaskill, Jr., of Atlantic City, for defendant.

SMITH, Judge.

This is a motion to strike the complaint based upon seven grounds. The seventh ground will not be considered as the complaint has been amended so as to eliminate this objection. The remaining six grounds upon which defendant relies assert that the complaint is insufficient in law. The complaint alleges that the plaintiff, an investigator in the Office of the Prosecutor of the Pleas for the County of Atlantic, is entitled to certain salary or compensation from the defendant which amounts to the difference between his compensation as a member of the United States Naval Reserve and what he would have received had he continued in his county employment from May 6, 1943 to June 22, 1945. It appears from further allegations of the complaint that the plaintiff was appointed to his position in the office of the Prosecutor of the Pleas in July of 1935. He continued in active service as an investigator until April 20, 1943 but was paid until May 6, 1943 for accrued vacation time. On September 29, 1941, the plaintiff enlisted in the New Jersey State Guard and on October 29, 1942 he resigned to accept a commission as a Lieutenant in the New Jersey State Guard. On October 30, 1942 plaintiff was appointed a Lieutenant in the said State Guard and continued as such until and including at least the 19th day of April, 1943. On November 27, 1942, while serving as a Lieutenant in the State Guard plaintiff enlisted in the United States Naval Reserve and was assigned to inactive service. Plaintiff was notified on or about April 14, 1943 to report for active duty in the United States Naval Reserve. Plaintiff, in accordance with his orders, submitted his resignation on the night of April 19, 1943 and was assigned to active duty in the United States Naval Reserve on April 20, 1943. Plaintiff served in the U. S. Naval Reserve on active duty until he was honorably discharged on June 22, 1945.

The cause of action herein asserted by the plaintiff is based on R.S. 38:12-4, N.J.S.A., and R.S. 38:12-5, N.J.S.A. which read as follows: R.S. 38:12-4, N.J.S.A.: ‘Leave of absence for state and municipal employees without loss of pay; additional to regular vacation.

‘All officers and employees of this State or of any county or of any municipality in the State or of any board or commission of the State or of any county or municipality who are members of the National Guard, naval militia or New Jersey State Guard shall be entitled to leave of absence from their respective duties without loss of pay or time on all days during which they shall be engaged in field training or other duty ordered by the Governor.

‘Leave of absence for military or naval duty shall be in addition to the regular vacation allowed in such employees by the State, county or municipal law, ordinance, resolution, or regulation. As amended L. 1941, c. 109, p. 251, § 23.

R.S. 38:12-5, N.J.S.A.: ‘Salary to equal loss suffered while on active service.

‘During the absence of any such officer or other employee, mentioned in section 38:12-4 of this title, on active service with the army or navy of the United States or any other organization affiliated therewith, such person shall receive such portion of his salary or compensation as will equal the loss he may suffer while on such active service.’

The question before the Court as raised by this motion is whether or not the plaintiff is within the provisions of R.S. 38:12-4, N.J.S.A. and R.S. 38:12-5, N.J.S.A. The defendant contends that the plaintiff is not entitled to the benefits contained in R.S. 38:12-4, N.J.S.A. and R.S. 38:12-5, N.J.S.A., because on the date the plaintiff was assigned to active duty in the United States Naval Reserve he was not a member of the New Jersey State Guard.

In deciding this motion the Court is permitted to consult the Statutes of the United States, the appropriate New Jersey statutes, and the records of the applicable government departments. Authority for this is contained in the case of Stephens v. Civil Service Commission, 101 N.J.L. 192, at page 194, 127 A. 808, 809, wherein Judge Clark said, ‘The general principles of statutory construction applicable are well established and can be briefly stated. In assisting us to arrive at the intention of the Legislature, we are permitted to consult the statutes of the United States, of our own state, and such records of the government departments involved as are properly matters of judicial notice.’ Counsel have also stipulated that the Resolution of the Board of Chosen Freeholders of the County of Atlantic and the certified copy of the record from the office of the Adjutant General of the State of New Jersey, the affidavit of the plaintiff, the photostatic copy of plaintiff's record in the office of the Adjutant General of the State of New Jersey and the affidavit of Brigadier General Bowers be used and considered by the Court in deciding this motion.

Where the words of a statute are clear and their meaning and application are plain, sensible and substantial there is no authority for and the statute cannot be controlled by judicial construction. Herod v. Mutual Chemical Co. of America, 115 N.J.L. 369, 180 A. 432; Alexander Hamilton Hotel Corporation v. Board of Review of New Jersey Unemployment Compensation Commission, 127 N.J.L. 184, 21 A.2d 739. The words of R.S. 38:12-4, N.J.S.A. and R.S. 38:12-5, N.J.S.A., are clear but their meaning and application are not plain, sensible and substantial with reference to members of the New Jersey State Guard. By virtue of R.S. 38:5-7.1, N.J.S.A. it is clear that the New Jersey State Guard may not be called, ordered, or drafted, as such, into the military service of the United States. The same statute expressly states that no member of the New Jersey State Guard shall be exempt from military or naval service under any law of the United States by reason of his enlistment or commission in the New Jersey State Guard. Congress by statute provided that the Naval Reserve shall be a component part of the United States Navy. This statute (34 U.S.C.A. § 853) was passed June 25, 1938. Sec. 853b of this act provides that no officer or man of the Naval Reserve shall be a member of any other naval or military organization except the Naval Militia. It is further provided that by appointment or enlistment in the Naval Reserve, one is obligated to serve in the Navy in time of war or when in the opinion of the President a national emergency exists. State statutes should be so construed as to harmonize with federal legislation on the same subject and facilitate the administration of justice. 59 Corpus Juris 1053. All statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it. 59 C.J. 1038. It should be noted that R.S. 38:12-4, N.J.S.A., which has its source in the Laws of 1937, Chapter 49, was amended by the Laws of 1941, Chapter 109, so as to change the original designation of ‘New Jersey guard’ to New Jersey State Guard. This conforms with the classification of the militia as contained in R.S. 38:1-1, N.J.S.A. Thus the court must conclude that members of the New Jersey State Guard are to receive the same benefits under this statutes as members of the New Jersey National Guard and the naval militia. In Tucker v. Frank J. Beltramo, Inc., 117 N.J.L. 72, at page 77, 186 A. 821, at page 824, Justice Heher said, ‘A modification of the law was indubitably contemplated. This is fairly to be presumed from the change in phraseology. There is a presumption against useless legislation.’ In the case of members of the New Jersey National Guard and the naval militia the applicability of R.S. 38:12-5, N.J.S.A., can be effected upon their respective units being called to active duty with the United States Army or Navy. But what of members of the New Jersey State Guard? That unit cannot be called into active duty by the federal government as is provided in R.S. 38:5-7.1, N.J.S.A. It is conceivable that members of the New Jersey State Guard could be drafted into federal service and thus become eligible for the benefits of R.S. 38:12-5, N.J.S.A. Would this deprive a member of the New Jersey State Guard otherwise eligible for the benefits of R.S. 38:12-5, N.J.S.A. of the privileges of this statute if he volunteered for service in the United States military forces? It is clear that no distinction is to be made between one who volunteered his services and one who was drafted. Justice Heher in Kobylarz v. Mercer 130 N.J.L. 44, at page 48, 31 A.2d 208, at page 212, said, ‘There can be no distinction in this behalf between those who volunteer for service during the war and those whose services are conscripted.’ The fact that this plaintiff was ineligible for the draft as is contended by the defendant is of no consequence. A further question arises as to whether the provisions of 34 U.S.C.A. § 853 prohibiting members of the Naval Reserve from being members of any other military organization except the Naval Militia would not nullify the provisions of R.S. 38:12-5, N.J.S.A. with respect to members of the New Jersey State Guard. The United States Constitution provides that the Constitution and the laws passed pursuant thereto shall be the supreme law of the land, art 6, cl....

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