Graham v. City of Asbury Park

• Decision Date: 05 October 1961
• Docket Number: No. A--284,A--284
• Citation: 174 A.2d 244,69 N.J.Super. 256
• Parties: John GRAHAM and David Jones, Plaintiffs-Appellants, v. CITY OF ASBURY PARK, a municipal corporation of the State of New Jersey, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 256

69 N.J.Super. 256

174 A.2d 244

John GRAHAM and David Jones, Plaintiffs-Appellants, v. CITY OF ASBURY PARK, a municipal corporation of the State of New Jersey, Defendant-Respondent.

No. A--284.

Superior Court of New Jersey, Appellate Division.

Argued Sept. 8, 1961.

Decided Oct. 5. 1961.

Roger H. McGlynn, Newark, for appellants (Charles Frankel, Asbury Park, attorney; Roger H. McGlynn, of counsel; Roger H. McGlynn, and Mr. John Russo, Toms River, on the brief).

Ascenzio R. Albarelli, Asbury Park, argued the cause for respondent.

Before Judges CONFORD, FREUND and LABRECQUE.

The opinion of the court was delivered by

FREUND, J.A.D.

Plaintiffs appeal from a judgment dismissing their complaint for salary, under the provisions of N.J.S.A. 40:46--34, during their suspension while under indictment.

Plaintiffs, John Graham and David Jones, are Asbury Park policemen who, on November 7, 1958, were indicted for misconduct in office. On the same day, they were suspended from duty as police officers by the local City Manager. They were never served with departmental charges, nor did they have a departmental hearing as provided by N.J.S.A. 40:47--6.

During the suspension and prior to the criminal trial, plaintiffs instituted suit seeking reinstatement to their position as police officers and payment of all salary withheld during suspension. The claim was that the city had failed to try them on charges within 30 days after service of the charges, as required by N.J.S.A. 40:47--8. On a motion, summary judgment in favor of plaintiffs was denied and the complaint dismissed on the ground that the indictment was still pending and undisposed of and that the cited statute was inapplicable where the suspension was by reason of an indictment rather than in connection with departmental charges.

On June 22, 1960 plaintiffs were acquitted of the criminal charge, and within a week thereafter they applied to be and were returned to duty as police officers. On July 6, 1960 plaintiffs again made demand for their back salary, relying upon N.J.S.A. 40:46--34. On August 1, 1960 they filed a complaint seeking to recover their salaries for the time they were suspended. Defendant, by its answer, denied that plaintiffs had fulfilled the conditions of the statute. The trial court, in denying their motion for summary judgment, held that they were not within the purview of the statute and dismissed their complaint, declaring that their suspension had not been 'judicially declared illegal' as required by the statute. Graham v. Asbury Park, 64 N.J.Super. 385, 165 A.2d 864 (Law Div.1960). Hence, the present appeal is taken from the final judgment.

The pertinent part of N.J.S.A. 40:46--34 reads as follows:

'Whenever a municipal officer or employee, including any policeman or fireman, has been or shall be illegally dismissed or suspended from his office or employment, and such dismissal or suspension has been or shall be judicially declared illegal, he shall be entitled to recover the salary of his office or employment for the period covered by the illegal dismissal or suspension * * *.'

The foregoing statute constitutes a combination of earlier statutes. The first was enacted to apply to municipal employees generally, L.1918, c. 139, § 1, p. 322, and amended by L.1919, c. 149, p. 323. The second was enacted to apply to municipal policemen and firemen, L.1926, c. 153, § 1, p. 257. In 1948, the Legislature consolidated the various provisions into the present statute, N.J.S.A. 40:46--34. The purpose of these various statutes was to abrogate in part the basic common law rule denying public officers recovery of salary unless it had actually been earned by the rendition of services. De Marco v. Bd. of Chosen Freeholders of Bergen County, 21 N.J. 136, 139, 145, 121 A.2d 396 (1956); City of Hoboken v. Gear, 27 N.J.L. 265 (Sup.Ct.1859). The present statute permits recovery of salary by, Inter alia, policemen for the 'period covered by the illegal * * * suspension' and after 'such * * * suspension has been or shall be judicially declared illegal * * *.' The plaintiffs contend that they are entitled to back salary since their suspensions were illegal and have been judicially so declared, if not literally, then within the fair meaning of the statute, as evidenced by its history and confirmed by judicial construction.

The formal notice that plaintiffs received from the municipality, informing them that they were suspended for an indefinite period of time, further stated that before final action was taken 'a hearing will be held * * * at which time you may appear and offer any evidence or testimony in your defense.' It is conceded that charges were never preferred against plaintiffs, nor were they given a hearing, as ordinarily required by N.J.S.A. 40:47--6 in cases of dismissal or suspension of policemen.

It is clear, however, that the mere return of the indictment supplied ample justification for plaintiffs' suspension since it would be against the public interest for plaintiffs to serve as law enforcement officers while they were under indictment. De Marco v. Bd. of Chosen Freeholders of Bergen County, supra. The defendant, City of Asbury Park, disputes the applicability of the present statute on the basis that no departmental charges were brought against the plaintiffs and therefore there was not, and could not have been, the statutory prerequisite of a judicial declaration of the illegality of the suspension. It is conceded by the defendant that if charges had been preferred against the plaintiffs and they had been found not guilty, even at a Pro forma hearing following their acquittal of a criminal charge predicated on the same occurrence, the claim would be controlled by Rozmierski v. City of Newark, 42 N.J.Super. 14, 125 A.2d 747 (Law Div.1956), wherein Judge Gaulkin held the statutory requirement of a judicial determination of the illegality of the suspension satisfied in a case where there had been departmental charges and an acquittal thereof at the hearing, but no indictment. It is because of the absence of departmental charges and a hearing thereon that the plaintiffs did not fall within the statutory provisions of an illegal suspension.

The defendant places reliance upon De Marco v. Bd. of Chosen Freeholders of Bergen County, supra, and Hinterberger v. Garfield, 52 N.J.Super. 526, 146 A.2d 123 (App.Div.1958), certification denied 28 N.J. 566, 147 A.2d 609 (1959). However, De Marco was decided solely on the ground that the statute was not available to county employees, being applicable only to municipal employees. In Hintenberger, supra, 52 N.J.Super. at page 532, 146 A.2d at page 126, the court adverted to the question of whether a suspension may properly be described as illegal on the basis of a later vindication of a criminal charge. The court stated that the question 'might well be answered in the negative but we are not called upon to express any definitive opinion in the instant case either.'

In Strohmeyer v. Borough of Little Ferry, 136 N.J.L. 485, 56 A.2d 885 (E. & A.1947), a policeman who had been indicted was suspended from duty pending a hearing on charges. Later, he was found not guilty and restored to duty. He was denied his claim of salary during his suspension since R.S. 40:46--34, N.J.S.A., as then in effect, gave relief only where policemen have been 'illegally dismissed,' and did not provide for recovery where he had been suspended. Within six months thereafter, the statute was amended, L.1948, cc. 163 and 395, so as to add the references to 'suspension' now found in the act, and made expressly retroactive to determinations made prior to the effective date of the act....