Grosso v. City of Paterson
| Decision Date | 26 March 1959 |
| Docket Number | No. L--12822,L--12822 |
| Citation | 150 A.2d 94,55 N.J.Super. 164 |
| Parties | Richard GROSSO, Saverio Allegra, Leon Giaccone, Louis Giordano, Patrick La Salle, Martin Luizzi, Kathleen D. Nixon, Sue Lund, Helen Suplicki, Doris Van Syckel, Nancy J. Decker, Nancy Lucarelli Famy, Evelyn L. Brown, Eleanor Gochman, Marguerite Marsh Sharry, Mary Mihalko, Jeanette Lauth, Ann Eodice, Helen Cleary, Plaintiffs, v. CITY OF PATERSON, a municipal corporation of the State of New Jersey, and Board of Health of the City of Paterson, Defendants. |
| Court | New Jersey Superior Court |
Irving I. Rubin, Paterson, for plaintiffs.
Theodore D. Rosenberg, Paterson, for defendants (Adolph Romei, Paterson, on the brief).
Plaintiffs, 19 in number, are employed by the Board of Health of the City of Paterson, hereinafter referred to as the 'board of health,' six as sanitary inspectors, eight as public health nurses, and five as laboratory personnel. In this action, instituted on August 6, 1958, against the City of Paterson and the board of health, they seek to recover unpaid portions of the salaries allegedy due them for the period from January 1 through July 31, 1958.
Plaintiffs and defendants have each moved for summary judgment, supported by affidavits which have been supplemented by a stipulation of facts. The issues presented are legal; there is no dispute as to the essential facts.
Plaintiffs were appointed to their respective positions by the board of health; all have permanent status in such positions. The salaries and salary ranges applicable to such positions are those established and set forth in three ordinances duly adopted by the board of health, each also providing for the annual increments to be paid until the maximum of the salary range is reached.
One ordinance, adopted June 27, 1956, establishes a salary range for sanitary inspectors of $3,600--$4,200 per annum and provides for annual increments of $120, beginning January 1, 1957. A second ordinance, adopted June 11, 1957, establishes a salary range for public health nurses of $3,400--$4,400 and provides for annual increments of $200, beginning January 1, 1958. A third ordinance, adopted July 9, 1957, establishes salary ranges for classes of laboratory personnel, varying from a high of $5,660--$6,660 for the director of laboratories to a low of $3,200--$4,200 for laboratory technicians, and also provides for annual increments of $200, beginning January 1, 1958.
Plaintiffs have not reached the maximum of their respective salary ranges. The sanitary inspectors received the $120 increase in annual salary which the ordinance provides for the year beginning January 1, 1957. But neither they nor any of the other plaintiffs have received any part of the increase or increment which the ordinance provides for the year beginning January 1, 1958, although the salary ordinances continue in full force and effect, and, indeed, defendant board of health adopted a resolution at its meeting of December 10, 1957, directing payment to the respective plaintiffs, beginning January 1, 1958, of the increments provided by the ordinances.
On the showing thus made, unless the defenses asserted by defendants are valid, plaintiffs would be entitled to a judgment against their employer, defendant board of health, for the salary balances claimed. Plaintiffs have duly performed the duties of their positions during the periods involved; the salaries and the salary ranges were established by ordinances of the board of health, not by resolutions, (cf. Howard v. Mayor, etc., of Paterson, 6 N.J. 373, 78 A.2d 893 (1951); Sagarese v. Board of Health of Morristown, 31 N.J.Super. 526, 107 A.2d 351 (Law Div.1954)); no ordinance has been adopted reducing or changing those salaries and salary ranges, and they can be reduced or changed only by an ordinance, not by a resolution or other action (Heil v. Mayor, etc., of Wildwood, 11 N.J.Misc. 171, 164 A. 868 (Sup.Ct.1933); Howard v. Mayor, etc., of Paterson, supra); plaintiffs have not waived their right to the increments; on the contrary, they protested their non-payment (Borz v. City of Camden, 119 N.J.L. 17, 194 A. 66 (E. & A. 1937); cf. Van Houghten v. City of Englewood, 124 N.J.L. 425, 12 A.2d 668 (Sup.Ct.1940); Long v. Board of Freeholders of Hudson County, 10 N.J. 380, 91 A.2d 724 (1952).
The basic defense asserted by defendants, in addition to some peripheral issues which will be discussed later, is that there is no obligation to pay the 1958 increments because, defendants say, the Board of Finance of the City of Paterson has refused to approve such payments and to provide money from which they can be paid.
The sequence of events on which defendants rely began shortly after December 10, 1957, when the defendant board of health forwarded to the Board of Finance of the City of Paterson a copy of its resolution directing payment to the plaintiffs of the increments provided in the salary ordinances for the period beginning January 1, 1958. Under date of December 13, 1957, the clerk of the board of finance wrote defendant board of health as follows 'This will acknowledge receipt of copy of your salary ordinance (sic) establishing increments effective January 1, 1958.
'I have been directed by the Board of Finance to advise you that no increases in salary shall appear on payrolls submitted by your board beginning January 1, 1958.'
This letter appears in the minutes of the board of health meeting held on January 15, 1958, at which time the board noted that its employees were 'jittery because their expected increments were not included in today's pay checks covering the 1st to the 15th of January.' The minutes indicated further 'that the Commissioners (of the board of health) promised that this matter would be straightened out as soon as possible and the increments given retroactive to January 1, 1958.' Such increments have not been paid despite continued protests made by plaintiffs at the subsequent meetings of the board of health.
On December 10, 1957, the same date it adopted the increment resolution, the board of health adopted a 'budget' for the year 1958 showing a payroll account of $351,752 and 'Other expenses' account of $42,000. The explanation of the payroll account is set out in the budget as follows:
"Current payroll as of January 1, 1958 .. $317,384.00
Increments due on January 1, by
ordinance:
Nurses ................................ 2,400.00
Sanitarians ........................... 1,080.00
Certain Laboratory Personnel .......... 2,000.00
Increments for persons not yet on
schedule ............................ 12,788.00
Vacancies which must be filled:
3 Public Health Nurses @ $3400 each ... 10,200.00
1 Clerk-typist @ $2700 ................ 2,700.00
1 Laboratory Technician @ $3200 ....... 3,200.00"
A copy of the 'budget' was set to the board of finance of the defendant City of Paterson and as such constituted the estimate of the appropriation it believed necessary for health purposes which it was required to submit to the governing body of the City of Paterson by R.S. 26:3--43, N.J.S.A., as amended, which reads as follows:
Thereafter, and on or about March 10, 1958, the municipal budget for the City of Paterson was adopted and provided therein the following:
"Board of Health Salaries $318,000.00
Other Expenses 40,000.00"
so that the total amount thus appropriated by the city of the board of health was $358,000, instead of the $393,752 it had asked for.
The issue presented requires an appraisal of the governmental status of the board of health and its relationship to the municipality, the City of Paterson. Defendants' answer and briefs treat the board of health as if it were but another municipal board similar to the board of finance, the board of fire and police commissioners, or the board of public works which exercise municipal powers vested in the city by its charter and supplemental legislation. That is not the governmental status of the board of health.
Paterson is a city of the second class, with a population in excess of 125,000. Prior to the enactment of chapters 45, 46, and 62 of the Laws of 1907 (), the governing body consisted of a mayor and an elected board of aldermen. The 1907 legislation created three boards, a board of finance, a board of public works, and a board of fire and police commissioners, with members appointed by the mayor, and transferred most of the powers theretofore exercised by the board of aldermen among those three boards.
The 1907 statutes did not increase or expand the powers of the city or its governing body; it merely distributed most of the powers theretofore exercised by the board of aldermen as the governing body of the city among the three new boards. McCarter, Attorney General v. McKelvey, 78 N.J.L. 3, 74 A. 316, (Sup.Ct.1909), affirmed 78 N.J.L. 621, 77 A. 94 (E. & A.1909); Lendrim v. Ryan, 98 N.J.L. 322, 119 A. 767 (Sup.Ct.1922).
But the board of health was not created, nor does it derive its powers from the charter of the City of Paterson. 1 It owes its creation to and derives its powers from the Board of Health Act originally enacted in 1887 (L.1887, c. 68), and now found in R.S. 26:3--1 et seq., N.J.S.A.; see also R.S. 26:1A--1 et seq., N.J.S.A.; Schwarz Bros. Co. v. Board of Health of Jersey City, 83 N.J.L. 81, 87, 83 A. 762 (Sup.Ct.1912), affirmed 84 N.J.L. 735, 87 A. 463 (E. & A.1913); Board of...
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