Hintenberger v. City of Garfield

• Decision Date: 14 November 1958
• Docket Number: No. A--377,A--377
• Citation: 52 N.J.Super. 526,146 A.2d 123
• Parties: Edward HINTENBERGER, Plaintiff-Appellant, v. CITY OF GARFIELD, a municipal corporation, Defendant-Respondent. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 526

52 N.J.Super. 526

146 A.2d 123

Edward HINTENBERGER, Plaintiff-Appellant, v. CITY OF GARFIELD, a municipal corporation, Defendant-Respondent.

No. A--377.

Superior Court of New Jersey.

Appellate Division.

Argued Oct. 14, 1958.

Decided Nov. 14, 1958.

George F. Losche, Hackensack, for plaintiff-appellant (Losche & Losche, Hackensack, attorneys).

Carmen M. Belli, Garfield, for defendant-respondent.

Before Judges PRICE, SCHETTINO and HALL.

The opinion of the court was delivered by

SCHETTINO, J.A.D.

Appeal is from a judgment in favor of defendant in an action brought to recover back salary allegedly due plaintiff for a period of time covered by his suspension from defendant's police force.

Plaintiff, a policeman of defendant municipality, was twice indicted on December 16, 1954 for sex offenses involving children. On January 27, 1955 plaintiff was suspended by the chief of police from active duty pending the outcome of the indictments. The suspension was ratified by the governing body of defendant city. Plaintiff was convicted and sentenced but the convictions were reversed by the Appellate Division. State v. Hintenberger, 41 N.J.Super. 597, 125 A.2d 735 (App.Div.1956). He was indicted for an additional offense, tried on all three indictments and acquitted on January 29, 1957.

Plaintiff applied for reinstatement on February 7, 1957 and was reinstated to duty on March 20, 1957. On the same day he was suspended from active duty by reason of indictments for false swearing and obstruction of justice arising out of the aforementioned two trials. The actions of reinstatement and second suspension were ratified by the governing body. There were never any written charges filed by the municipality, nor was there any departmental trial. It is stipulated that plaintiff during that period was ready and willing to go back to duty but defendant prevented him from doing so by its suspension. Although not part of the stipulation of facts, the trial court noted and made use of the County Court records showing that plaintiff was subsequently convicted of the false swearing and obstruction of justice charges. It was conceded that plaintiff never sought return to the police department after that conviction.

On March 26, 1957 plaintiff made application pursuant to N.J.S.A. 40:46--34 to recover back salary in the total amount of $9,416 representing a period from the day of original suspension to the date of reinstatement.

Plaintiff strongly urges the application of N.J.S.A. 40:47--6 and N.J.S.A. 40:47--8. These provisions refer to a suspension during which departmental charges are pending and prior to a departmental hearing. D'Ippolito v. Maquire, 33 N.J.Super. 477, 111 A.2d 78 (App.Div.1955). These statutes are not applicable since admittedly departmental charges were never brought against plaintiff.

We feel that the statute, if any statute is applicable, is N.J.S.A. 40:46--34, which reads in part 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; * * *.'

Plaintiff contends that the action of the governing body in reinstating him to his position, even though it was for only part of a day, was the judicial declaration of illegality required by the statute. Defendant counters by arguing that the original suspension was not illegal and could consequently never be declared so to be. It alternatively urges that, even if it could be, it never in fact was 'judicially declared' illegal. Plaintiff additionally argues that the trial court erred in considering the indictment and record of conviction of plaintiff for false swearing and obstruction of justice. (We are of the opinion that it had every right to do so. Taylor v. N.J. Highway Authority, 22 N.J. 454, 459, 126 A.2d 313 (1956)).

Was the plaintiff's suspension 'judicially declared illegal' within the meaning of N.J.S.A. 40:46--34? Plaintiff concedes that the municipality was clearly justified in suspending a patrolman under indictment. But, plaintiff contends that, although the action was clearly justified and proper at the time it was taken, it was later found to be 'illegal' by defendant's action in reinstating plaintiff to duty on March 20, 1957.

Defendant concedes, if plaintiff had been suspended pending departmental charges and after a department hearing had been acquitted and reinstated, the statutory requirement that the 'suspension has been * * * judicially declared illegal? would have been fulfilled. See Strohmeyer v. Borough of Little Ferry, 6 N.J.Super. 282, 71 A.2d 141 (App.Div.1950).

Plaintiff urges that the word 'illegal' has a special meaning under N.J.S.A. 40:46--34 and that, when the governing body restores the suspended person to duty either because acquitted in a departmental trial or in a criminal trial, defendant acknowledges the illegality of the original suspension. Plaintiff claims his position is buttressed by Rozmierski v. City of Newark, 42 N.J.Super. 14, 19, 125 A.2d 747 (Law Div.1956). Plaintiff concludes that, since 'judicially declared illegal' has a special meaning under the statute, he has complied with this requirement by submitting proof not of the judgment of acquittal of the second trial but by submitting proof of the act of reinstatement by the governing body. He contends no formal hearing is necessary to establish a judicial declaration.

Defendant, however, contends that no departmental charge was filed against plaintiff, no hearing was had from which stemmed the temporary order of reinstatement to duty and no finding of illegality was made by defendant.

In support of plaintiff's contention that the reinstatement was a judicial act even absent a formal hearing, plaintiff cites Lindsey v. Hudson County, 10 N.J.Misc. 627, 628, 160 A. 212, 213 (Sup.Ct.1932) (not officially reported), wherein Judge Ackerson stated:

'* * * the official or body charged with the duty of suspending or discharging an employe or person holding a position is acting judicially when so doing. His action is subject to review, and may be reversed. Until reversed, it stands.'

Plaintiff also relies heavily upon Van Sant v. Atlantic City, 68 N.J.L. 449, 450, 53 A. 701 (Sup.Ct.1902), where the plaintiff was dismissed as a police officer without holding a hearing, the court saying:

'The effect of these statutes is to entitle persons coming within their provisions to charges and a trial. A dismissal without these is void. But the official charged with the duty of discharging is acting judicially when so doing. His action is subject to review, and may be reversed. Until reversed, it stands.'

These authorities are not, however, persuasively beneficial to plaintiff's cause. If some one in an official position has the authority to make decisions and exercise discretion or judgment, he is acting...