Adams v. Atl. County.

• Decision Date: 03 September 1948
• Citation: 137 N.J.L. 648,62 A.2d 162
• Parties: ADAMS v. ATLANTIC COUNTY.
• Court: New Jersey Supreme Court

137 N.J.L. 648

62 A.2d 162

ADAMS

v.ATLANTIC COUNTY.

Court of Errors and Appeals of New Jersey.

Sept. 3, 1948.

Syllabus by the Court.

1. R.S. 38:12-4 and R.S. 38:12-5, N.J.S.A., are related and must be read together.

2. Obviously the legislature enacted R.S. 38:12-5, N.J.S.A., to include public employees who were members of any of the three units or organizations named in R.S. 38:12-4, N.J.S.A., and who were absent on active service with the military forces of the United States.

3. The courts have no legislative authority and should not construe statutes any more broadly nor give them any greater effect than their language requires.

DONGES, Justice, and WELLS, DILL, and SCHETTINO, Judges, dissent.

Appeal from Circuit Court, Atlantic County.

Action by Bartholomew George Adams against the County of Atlantic 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 position of investigator in office of prosecutor of the pleas. From the refusal to grant a motion to strike out the complaint, 53 A.2d 168, 25 N.J.Misc. 291, and a judgment for plaintiff, defendant appeals.

Reversed.

Edmund C. Gaskill, Jr., and Abraham Rosenberg, both of Atlantic City, for defendant-appellant.

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

FREUND, Judge.

The appellant, County of Atlantic, appeals from the entry of a summary judgment in favor of the respondent, rendered in the Atlantic County Circuit Court, which struck the appellant's answer and separate defenses, and ordered the entry of summary judgment for the respondent. Prior thereto the appellant moved to strike respondent's complaint, which motion was denied, Adams v. County of Atlantic, 53 A.2d 168, 25 N.J.Misc. 291. The instant appeal is from the refusal to grant the motion to strike the complaint, the granting of the motion to strike the answer and the entering of summary judgment.

The complaint alleges that the respondent was employed as an investigator in the office of the Prosecutor of the Pleas of Atlantic County. On September 29, 1941, respondent enlisted in the New Jersey State Guard and continued in the service of the New Jersey State Guard until October 29th, 1942, when he resigned and was honorably discharged. The following day, October 30, 1942, he received his commission as a lieutenant in the State Guard and continued as a lieutenant until April 19, 1943. On November 27th, 1942, he enlisted in the United States Naval Reserve and was assigned to inactive duty. On April 14, 1943, he was notified to report for active service in the United States Naval Reserve and was informed that before entering on such duties he would be required to resign his commission as lieutenant in the New Jersey State Guard. On April 19, 1943, he submitted his resignation dated March 30, 1943, from the New Jersey State Guard. On April 20, 1943, at the Custom House in Philadelphia, respondent was assigned to active duty in the United States Naval Reserve and from then until June 22, 1945, he continued in the active service of the United States Naval Reserve, on which latter date he was honorably discharged therefrom.

Respondent further alleges that from May 6, 1943, to June 22, 1945, he was in the active service of the United States Naval Reserve and for that period of time he is entitled to be paid by the appellant the difference in the amounts he received as salary or compensation while in the active service of the United States Naval Reserve and the amount of salary or compensation he would have received had he remained and continued in his employment as investigator in the prosecutor's office, amounting to the sum of $2,067.03.

Subsequent to the denial of the appellant's motion to strike the complaint, the appellant filed its answer and separate defenses, and inter alia alleged that ‘plaintiff has neither a statutory nor common law right to receive payment of any moneys from the defendant under the facts as alleged in his complaint’ and that ‘plaintiff was not a member of the New Jersey State Guard * * * at the time he allegedly entered into active service with the United States Naval Reserve’ and that ‘plaintiff resigned from the New Jersey State Guard prior to entering upon active service, with the United States Naval Reserve, his said resignation having been accepted by the Governor of the State of New Jersey as of a date prior to the plaintiff's alleged service in the United States Naval Reserve’ and that ‘the New Jersey State Guard was not called into active military service by the United States either individually or en masse. * * *’

The respondent then served notice of motion to strike the appellant's answer and defenses, which motion was granted and summary judgment was entered in favor of the respondent.

The respondent concedes that he has no common law right to receive the salary differential and rests his claim exclusively upon R.S. 38:12-4 and 5, N.J.S.A. The sole question presented by this appeal is the construction of these statutes. The applicable statutory provisions read as follows:

‘R.S. 38:12-4. 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 to such employees by the State, county or municipal law, ordinance, resolution, or regulation.’ As amended, L.1941, ch. 109, p. 251, s 23.

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

‘During...