Harvey v. Board of Chosen Freeholders of Essex County

• Decision Date: 30 June 1959
• Docket Number: No. A--95,A--95
• Citation: 30 N.J. 381,153 A.2d 10
• Parties: William F. HARVEY, Plaintiff-Appellant, v. BOARD OF CHOSEN FREEHOLDERS OF ESSEX COUNTY, Employees' Retirement System of Essex County, Neil G. Duffy, Sheriff of Essex County, Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 381

30 N.J. 381

153 A.2d 10

William F. HARVEY, Plaintiff-Appellant, v. BOARD OF CHOSEN FREEHOLDERS OF ESSEX COUNTY, Employees' Retirement System of Essex County, Neil G. Duffy Sheriff of Essex County, Defendants-Respondents.

No. A--95.

Supreme Court of New Jersey.

Argued April 21, 1959.

Decided June 30, 1959.

Wilbur J. Bernard, Orange, for plaintiff-appellant.

Howard W. Hayes, Newark, for defendants-respondents (Nicholas T. Fernicola, County Counsel, Newark, attorney).

The opinion of the court was delivered by

SCHETTINO, J.

Appeal is from a Superior Court, Law Division, judgment in favor of defendants upholding the constitutionality of L.1947, c. 367 (hereafter referred to as N.J.S.A. 43:10--18.26) and dismissing plaintiff's complaint. The case was decided on the pretrial order, exhibits and stipulated facts. The trial court's opinion is reported in 51 N.J.Super. 363, 144 A.2d 34 (Law Div.1958). Plaintiff appealed to the Appellate Division and we certified under R.R. 1:10--1(a).

In 1923 plaintiff was appointed a court attendant in the office of the Sheriff of Essex County. From that date he has been in the classified service under Civil Service, a member of a certain pension fund until 1943 at which time he became a member in good standing of the pension system under L.1943, c. 160, as amended (N.J.S.A. 43:10--18.1 et seq.), the pension fund statute, and continued to be up to the date his services were terminated on January 9, 1958.

N.J.S.A. 43:10--18.26 is a supplement to the pension fund statute. It encompasses 'pensionable' court attendants, guards, keepers and others caring for prisoners. It provides for the retirement at age 65 of employees of certain counties and also provides for the employees' continuance in their positions after that age. This statutory provision, affecting this plaintiff and the defendant county, provides in part:

'The board of chosen freeholders * * * May retire any court attendant in the office of the sheriff, * * * who shall have served as such for a period of twenty years, and shall have reached the age of sixty-five years, and who, at that time, is a member of the employees' retirement system * * *; Provided, however, subject to the approval of the board of chosen freeholders, that any such person may be continued in his * * * county employment after reaching the age of sixty-five, if the sheriff * * * shall file a certificate with the board of chosen freeholders and the pension commission of the county, certifying that such person is in good physical and mental condition and able to fully perform his * * * duties, in which event such employee shall be permitted to remain in employment for a period not exceeding one year from the date of the certificate. Such certificates may, in the discretion of the sheriff * * *, be renewed annually until after such person shall have reached the age of seventy.' (Emphasis supplied.)

On November 9, 1957 plaintiff became 65 years of age. The sheriff did not file the necessary certificate. The sheriff's notice of termination dated December 4, 1957 stated that plaintiff was being retired in view of his lengthy leaves of absence due to illness in the previous two years. On March 15, 1958, after this suit was started, the board of chosen freeholders by resolution terminated plaintiff's services Nunc pro tunc as of January 9, 1958.

Plaintiff argues that the statute violated Art. IV, § VII, pars. 7, 8, and subsections 5 and 13 of paragraph 9 of the New Jersey Constitution of 1947 in that it constitutes 'special' legislation as it applies only to those court attendants and custodial employees who are members of the Employees' Retirement System. It was stipulated that 87 court attendants are members of that system and three are not, and that of all the permanent custodial employees, including court attendants, 232 are members of the system and 12 are not. Plaintiff also argues that the statute is violative of due process and denies equal protection of the laws because it vests in the board of chosen freeholders and the sheriff an absolute discretion to retire or not to retire an employee; that it creates a division within a class where no realistic division exists and that it sets up no norm or standard by which a determination could properly be made whether an employee shall or shall not be continued in service after age 65.

Defendants argue that the emphasized word 'may' in the statute should be read as 'shall' in order to effectuate the intention of the Legislature to compel the retirement of the designated county employees at age 65.

The trial court held that this legislative classification of 'court attendant' was reasonable and that the fact that only court attendants who are members of the retirement system were encompassed did not render the statute unconstitutional. It further held that the statute, in permitting the sheriff and board of freeholders to continue a court attendant in service from year to year after 65 and through 70, did set forth sufficient standards, namely, 'good physical and mental condition and ability to fully perform the duties of his employment.' (51 N.J.Super, at page 367, 144 A.2d at page 36.)

Subsequent to the filing of the appeal plaintiff wrote to the Pension Fund Commission of the Employees' Retirement System of Essex County, requested a pension provided for by N.J.S.A. 43:10--18.9 and stated:

'* * * The application, * * * is made subject to the final outcome of my case and this application is to be considered in nowise a waiver of my right to proceed with my appeal or my right to be reinstated as an active court attendant should I be successful in my suit.'

The pension was granted over the objection and advice of defendants' counsel. However, plaintiff was required to sign an agreement to repay the pension moneys if he ultimately succeeded on appeal.

Defendants move to dismiss the appeal because plaintiff acquiesced in the judgment, accepted the benefits thereunder, and thereby took a position inconsistent with his right to appeal. Defendants additionally argue that plaintiff is estopped to attack the constitutionality of the statute because he has applied for retirement and accepted a pension under the act. In view of the determinations we reach on the merits, we need not discuss these contentions.

We first consider plaintiff's contention that the statute is unconstitutional in that it is a 'special' law because it compels retirement of only those court attendants who are members of the retirement system but is not applicable to those few attendants who are not members of that system. There is a strong presumption that a statute is constitutional, General Electric Co. v. City of Passaic, 28 N.J. 499, 510, 147 A.2d 233 (1958); In re Village of Loch Arbour, 25 N.J. 258, 264--265, 135 A.2d 663 (1957), and a legislative act will not be declared void unless its repugnancy to the Constitution is clear beyond a reasonable doubt. Gangemi v. Berry, 25 N.J. 1, 10, 134 A.2d 1 (1957). 'To declare a statute unconstitutional is a judicial power to be delicately exercised.' Wilentz v. Hendrickson, 133 N.J.Eq. 447, 487, 33 A.2d 366, 390 (Ch.1943), affirmed 135 N.J.Eq. 244, 38 A.2d 199 (E. & A. 1944). In Loch Arbour, supra, Mr. Justice Francis said (25 N.J. at pages 264--265, 135 A.2d at page 666):

'In approaching a problem such as this, courts always recognize a strong presumption of constitutionality; doubts are resolved in favor of conformity with the organic law, and if the statute under attack admits of two constructions, one of which will render it invalid and the other valid, the interpretation sustaining constitutionality will be adopted.'

In deciding whether an act is general or special, it is what is excluded that is the determining factor and not what is included. Budd v. Hancock, 66 N.J.L. 133, 135--136, 48 A. 1023 (Sup.Ct.1901). If no one is excluded who should be encompassed, the law is general. Another requirement of a general law is that it must affect equally all of a group who, bearing in mind the purposes of the legislation, are distinguished by characteristics sufficiently marked and important to make them a class by themselves. In Van Riper v. Parsons, 40 N.J.L. 1, 9 (Sup.Ct.1878) the court pointed out that local and special laws rest on a false or deficient classification in that 'their vice is that they do not embrace all the class to which they are naturally related; they create preference and establish inequalities; they apply to persons, things or places possessed of certain qualities or situations, and exclude from their effect other persons, things or places which are not dissimilar in these respects.' See also City of Passaic v. Consolidated Police, etc., Pension Fund Commission, 18 N.J. 137, 146, 113 A.2d 22 (1955); Sherwood v. Bergen-Hackensack, etc., Authority, 24 N.J.Misc. 48, 53--54, 46 A.2d 151 (Sup.Ct.1946), affirmed 135 N.J.L. 304--306, 51 A.2d 197 (E. & A. 1946). With this distinction between a special and a general law in mind, the question is whether any appropriate person is excluded to which the law, but for its limitations, would apply. Koons v. Board of Com'rs of Atlantic City, 134 N.J.L. 329, 333, 47 A.2d 589 (Sup.Ct.1946), affirmed per curiam 135 N.J.L. 204, 50 A.2d 869 (E. & A. 1947); In re Freygang, 46 N.J.Super, 14, 23, 133 A.2d 672 (App.Div.1957), affirmed 25 N.J. 357, 136 A.2d 625 (1957).

The classification outlined in the statute herein is reasonable because there is an adequate basis for differentiating between the members and non-members of the retirement system over the age of 65. N.J.S.A. 43:10--18.6(a) provided that any person under the age of 45 who after its enactment became an employee and was physically and mentally fit had to become a member of the county employees' retirement system. Subsection (c) provided that any person then a county employee, including those in plaintiff's category, who was a member of any other pension...