Hintenberger v. City of Garfield

• Decision Date: 21 February 1958
• Docket Number: No. L--7778,L--7778
• Citation: 139 A.2d 328,49 N.J.Super. 175
• Parties: Edward HINTENBERGER, Plaintiff, v. CITY OF GARFIELD, A Municipal Corporation, Defendant. . Law Division
• Court: New Jersey Superior Court

Page 175

49 N.J.Super. 175

139 A.2d 328

Edward HINTENBERGER, Plaintiff, v. CITY OF GARFIELD, A Municipal Corporation, Defendant.

No. L--7778.

Superior Court of New Jersey.

Law Division.

Feb. 21, 1958.

Losche & Losche, Hackensack (George F. Losche, Hackensack, appearing), for plaintiff.

Theodore R. Ciesla, Garfield, for defendant.

SCHNEIDER, J.C.C. (specially assigned).

Plaintiff sues to recover compensation due him as a policeman during his illegal suspension from active duty. The facts are stipulated.

The plaintiff was appointed as a patrolman of the City of Garfield, Bergen County, N.J., on April 16, 1947 and served as such to January 27, 1955. The plaintiff was indicted by the Bergen County grand jury on December 16, 1954 for a violation of N.J.S. 2A:96--3 and 2A:115--1, N.J.S.A. Both of these are so called 'sex' offenses involving children.

On January 27, 1955 the Chief of Police of Garfield notified the plaintiff of suspension from active duty pending the outcome of the indictments, which action was ratified by the governing body of the defendant.

On February 7, 1956 the plaintiff was convicted of a violation of both indictments and he was sentenced on March 2, 1956. On October 5, 1956 the Appellate Division of the Superior Court reversed the conviction under both indictments, State v. Hintenberger, 41 N.J.Super. 597, 125 A.2d 735. On December 28, 1956 the plaintiff was again indicted for a further violation of N.J.S. 2A:96--3, N.J.S.A. He was retried on the two old indictments and the new one on January 29, 1957 and was acquitted of all charges.

On March 20, 1957 plaintiff was reinstated to duty and was immediately suspended from active duty by reason of new indictments for false swearing and obstruction of justice arising out of the previous trials, which action of reinstatement and suspension was ratified by the governing body of Garfield.

On March 26, 1957, pursuant to requirements of N.J.S.A. 40:46--34, plaintiff made application to recover salary for the period January 27, 1955 to March 30, 1957. It is stipulated that during the period of the first suspension the plaintiff has been ready and willing to perform his duties but was prevented from doing so by the suspension. There were no written charges in the municipality, nor was there any departmental trial. The parties agree that if there is to be a recovery, it will be in the amount of $9,416.

The stipulation of fact does not go beyond the above statement of facts, yet it is a matter of record that the second suspension at the same time of the momentary reinstatement, was for the crime of false swearing arising out of the testimony given in the trial resulting in the acquittal upon which this claim is based. It is also a matter of record that there was a trial, resulting in the conviction of the plaintiff in this case on four of six counts of the indictment and he was sentenced. He never returned to active duty nor was he ever reinstated.

N.J.S.A. 40:46--34 provides that

'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 statute also provides for notice which is not in issue in this case.) The statute specifically covers this case by reason of the amendment in 1948 (c. 163, sec. 1 and c. 395, sec. 1) which included the suspension situation in the statute.

Counsel for defendant sets forth considerable law that the municipality had a legal right to suspend by reason of the charges filed. This is not the issue in this case. There was a right to suspend and if the suspension was judicially declared to be legal, there could be no recovery in this case.

The defendant contends that the plaintiff is not entitled to recover salary for the period of suspension, where the suspension has not been judicially declared illegal. Yet on the stipulation of facts agreed to by defendant counsel, it shows an acquittal of charges for which suspension was originally created and a reinstatement to the force. The plaintiff sues only for this period of time and does not seek recovery for the period of the second suspension arising out of charges arising after most of the period of the first suspension. The defendant does not show facts linking the second suspension as part of the first suspension.

The defendant quotes De Marco v. Board of Freeholders of Bergen County, 21 N.J. 136, 121 A.2d 396 (1956), as law for the point that there can be no recovery where services have not been rendered. The De Marco case was decided on the basis that R.S. 40:46--34, N.J.S.A., does not apply to any but municipal officers. While the court did discuss the theory that there could be no recovery where no work was done, it was careful to point out that the social consideration of double compensation for work done rests with the Legislature rather than with the courts. The judicial function is one of statutory interpretation and application within constitutional limits.

A very similar case to ours was Strohmeyer v. Borough of Little Ferry, 6 N.J.Super. 282, 71 A.2d 141 (App.Div.1950). In this case the officer was suspended after indictment by the grand jury. The charges were dismissed and the officer returned to duty. The court held that this was a judicial determination that the suspension was illegal and the officer was, by virtue of the statute, entitled to recover the salary for the period of suspension.

There is no question that if the plaintiff, after his acquittal, had been restored to active duty, as he was in this case, and had continued to serve, or had then or later resigned, that he would be entitled to recover the full compensation for the period of suspension. This would be so by reason of the statute and the Strohmeyer decision.

The real issue in this case is whether the suspension on the day of reinstatement and the subsequent conviction and removal from duty, based on charges for false swearing arising out of the trial which resulted in an acquittal, is not actually part of the original suspension. Does it follow that the reinstatement was actually a nullity and gave no rights to the present plaintiff? Is the statutory right to recovery under R.S. 40:46--34, N.J.S.A. defeated because in actuality the suspension has not been declared illegal?

While the defendant neither stipulated nor proved facts to show the nature of the subsequent indictments or the conviction or sentence, counsel did set forth the fact of conviction in his brief, and did show the plaintiff was never actually restored to duty. These facts are before the court and the court has examined the records. In the interest of justice, the court will consider all the facts.

In Rozmierski v. City of Newark, 42 N.J.Super. 14, at page 17, 125 A.2d 747, at page 748 (Law Div.1956), Judge Gaulkin held that the court may take judicial notice of the records of Essex County. This court has examined the record of this entire case. The indictment for false swearing and subsequent conviction was for testimony given in the previous case where there was an acquittal and went to the very heart of the case. There were numerous instances of change in testimony between the second trial in which there was an acquittal and the first trial in which there was a conviction.

1. Some question has been raised in this case that recovery must be had because the defendant municipality violated the provisions of N.J.S.A. 40:47--6 and 40:47--8. These provide as follows:

N.J.S.A. 40:47--6: 'No person shall be removed from office or employment in any such police department * * * for political reasons, or for any other cause than incapacity, misconduct, nonresidence, or disobedience of rules and regulations established for the government of the police force and department * * * in such municipality.

'No person, whether officer or employee in any such police department * * * shall be suspended, removed, fined or reduced from office or employment therein, except for just cause, as hereinbefore provided, and then only after written charge or charges of the cause or causes of complaint shall have been preferred against such officer or employee of said police department * * * signed by the person or persons making such charge or charges and filed in the office of the body, officer or officers having charge of the department in which the complaint arises and a copy thereof served upon such person within fifteen days after the filing thereof and after the charge or charges shall have been publicly examined by the appropriate board or authority upon reasonable notice to the person charged, which examination shall be commenced not less than fifteen days nor more than thirty days after said copy of such charge or charges shall have been so served.

'It is the intent of this section to give every person against whom a charge or charges for any cause may be preferred under this article a fair trial upon said charge or charges and every reasonable opportunity to make his defense if any he has or chooses to make and that in event of failure of compliance with any provision of this section, such charge or charges shall be dismissed.'

N.J.S.A. 40:47--8: 'If any officer, member or employee in any such department shall be suspended pending trial on charges, such trial shall be commenced within thirty days after service of a copy thereof upon him, otherwise the charges shall be dismissed and the officer or employee returned to duty.'

The court does not find merit in this contention. There were indictments that made it impossible to continue the officer on duty until the matter was completed in the criminal courts. It could not be heard locally but had to await jury action. Most of the delay was caused by...