Harley v. Passaic County

• Decision Date: 31 July 1937
• Citation: 194 A. 298
• Parties: HARLEY v. PASSAIC COUNTY.
• Court: New Jersey Supreme Court

194 A. 298

HARLEY

v. PASSAIC COUNTY.

Supreme Court of New Jersey, Passaic County.

July 31, 1937.

Action at law by William B. Harley against the County of Passaic. On plaintiff's application for an order striking out defendant's answer as sham or frivolous.

Order striking answer.

Archibald Kreiger, of Paterson, for plaintiff. Harry L. Schoen, Co. Counsel, of Paterson, for defendant.

WOLBER, Circuit Judge.

This matter comes before me on an application for an order to strike out the answer filed in the above cause upon the following grounds: That the denial of the complaint and the first, second, third, and fourth separate defenses are sham or frivolous.

In his complaint plaintiff sets forth that on April 1, 1929, he was nominated and appointed by the Governor, by and with the advice and consent of the Senate of this state, and commissioned by the Governor and thereafter accepted the office of judge of the court of common pleas for the County of Passaic for the term of five years, as provided by law, and acted as such during his term; that on June 1, 1931, in accordance with the statute, he elected to serve full time as such judge of the court of common pleas, and by reason thereof was entitled to receive for his services the salary of $13,000 per year; that during the year 1933 and until April 1, 1934, he was entitled to receive said salary of $13,000 per year; that during 1933 he was paid by defendant $9,750, and during the months of January, February, and March, 1934, he was paid the sum of $2,437.50; that he has demanded payment of the balance of his compensation amounting to $4,062.50, but that the defendant, by its Board of Chosen Freeholders, has neglected and refused to cause its county treasurer to pay the above-mentioned balance of his salary to the plaintiff, which he was by law entitled to receive.

Plaintiff avers that there is due and owing to him said sum of $4,062.50, together with interest to be computed on feach monthly sum when the same became due and payable, and demands judgment, together with interest and costs.

In its answer, besides a general denial, the county sets forth in its first separate defense that the plaintiff, as a public officer receiving his salary from the County of Passaic, was well acquainted with the financial condition of the County of Passaic and its hardship in paying full salaries of its officers and employees, and that he did offer to help and assist the situation in which the defendant found itself on or about January 1, 1933, and about said time consented and voluntarily donated and contributed 25 per cent. of his yearly salary back to the county. The pay roll sheets of the County of Passaic, which were approved semimonthly for payment by each department, show that from January 1, 1933, until February 15, 1933, the pay roll sheets of the plaintiff's department designate thereon the following stipulation: "Annual Salary, $13,000, Amount Due, $406.25, Less 25%, $135.42, donated." The pay roll sheets as approved semimonthly by the plaintiff from February 15, 1933, until March 31, 1934, when the period of the plaintiff's services in the County of Passaic terminated, designate thereon the following stipulation: "Annual Salary, $13,000, Amount Due, $406.25, Less 25%, $135.42, deducted in accordance with par. 1, chap. 17, Laws of 1933 [N.J.St. Annual 1933, § *136—1320A(10)]."

It further sets forth that the plaintiff received and approved his semimonthly salary payment sheets from the treasurer of the County of Passaic, which bore a 25 per cent. voluntary donation of the plaintiff, and that thereafter he accepted from the county his semimonthly! salary checks, less the donation of 25 per cent. In this defense, the county further avers that it was the intention of the plaintiff, in relinquishing a portion of his salary, to help the county to rebuild its financial status during the period of economic stress, and that during his entire term of office no formal notice of dissent or disavowal from such intention of the parties was ever sent to the defendant, nor did the defendant, in any other way or at any other time, receive any notification of any protest or dissent to this agreement between the plaintiff and the county; that the plaintiff, having made this voluntary donation of 25 per cent. of his salary to the county, and it being the intention of the parties that such donation was made for the purpose of helping and aiding the defendant in its financial condition at the time, is now barred by law from recovering the same from the defendant.

The second separate defense sets up waiver and estoppel of any right of the plaintiff to recover any difference in his salary from the defendant.

The third separate defense relies upon the provisions of chapter 17 of the Laws of 1933 (N.J.St.Annual 1933, § *136— 1320A (10) and chapter 446 of the Laws of 1933 (N.J.StAnnual 1934, § *136— 1320A(10) for power and authority in the county to reduce plaintiff's salary, by virtue of which it passed resolutions reducing the yearly salary of the plaintiff by 25 per cent.

The fourth separate defense sets up that the plaintiff accepted such reduction in salary without protest or disavowal, as a complete accord and full satisfaction of any salary due and owing to him from the County of Passaic.

Plaintiff submits an affidavit that he believes there is no defense to this action and substantiates the allegations of his complaint. He further says that on January 22, 1937, the Court of Errors and Appeals in the case of Delmar v. Bergen County, 117 N.J.Law 377, 189 A. 75 (Case, J.) held that chapter 17 of the Laws of 1933 and subsequent legislation continuing that law was unconstitutional as applied to a common pleas judge of the County of Bergen, a county of the second class, and that the office formerly occupied by him was in the same class and category as that in the case mentioned; that on February 17, 1937, he made a demand in writing upon the Board of Freeholders of Passaic County for the return of $4,062.50, having been illegally deducted from his salary because it was done under an unconstitutional statute.

The county has submitted no affidavits to support its defenses.

It will be observed that chapter 17 of the Laws of 1933 was approved on February 4, 1933, and chapter 446 of the Laws of 1933 was approved December 7, 1933.

In Delmar v. Bergen County, supra, the plaintiff, one of the common pleas judges of the County of Bergen, sued for accumulated arrears in salary, the amount of which was in dispute. The judge of the Bergen County circuit court, sitting without a jury, awarded judgment to the plaintiff for the amount found to be due after the allowance of a series of deductions imposed by the Bergen County Board of Freeholders. The plaintiff contended that he was entitled to the full statutory salary. Justice Case in that case said 117 N.J.Law 377, at page 379, 189 A. 75, 77: "There are two basic principles, one laid down in the language of our Constitution, the other a judicial construction of that language, which must be observed in fixing the compensation of common pleas judges. The first is a portion of article 4, section 7, paragraph 11 of the Constitution, which provides that 'The legislature shall not pass private, local or special laws in any of the following enumerated cases, that is to say: * * * regulating the internal affairs of towns and counties.' It is clear, for reasons presently to be stated, that that compensation is an 'internal affair' of the counties. The second, laid down in our cases, is, that a law regulating these salaries differently in the several counties must be predicated upon population, services rendered, or some other general principle applicable to the subject."

Chapter 316 of the Laws of 1931 (N.J.St. Annual 1931, § 50—112t(1) et seq.), a general act, which likewise applies to the instant case, fixed the classification for the judge's salary. It remained the basic act upon which county deductions were calculated, and was made dependent upon county population.

Mr. Justice Magie in Skinner v. Collector (Sup.1880) 42 N.J.Law 407 said that the fixing of salaries of common pleas judges on the basis of county population was a resort to a criterion "reasonably likely to justify a distinction in respect to compensation," and that it seemed "that such a classification is entirely proper."

In the Delmar Case the court held that while chapter 17 of the Laws of 1933 was general in its terms and potentially reached every county, its generality was apparent rather than real when applied to the salaries of common pleas judges, and that, if the Legislature, upon whom rests the duty of fixing their compensation, could not make salary distinction between courts and counties of the same class, its instrumentality, the county, could not do that by indirection which might not be done by it directly.

The court further held that nowhere in the history of this state until this legislation of 1933 did the several counties ever have aught to...