Lloyd v. Vermeulen

• Decision Date: 23 April 1956
• Docket Number: No. L--4781,L--4781
• Citation: Lloyd v. Vermeulen, 122 A.2d 388, 40 N.J.Super. 151 (N.J. Super. 1956)
• Parties: Frank T. LLOYD, Jr., Plaintiff, v. Abram M. VERMEULEN, Director of the Division of Budget and Accounting andState Comptroller, Department of the Treasury of the State of New Jersey,Defendant. . Law Division
• Court: New Jersey Superior Court

Page 151

40 N.J.Super. 151

122 A.2d 388

Frank T. LLOYD, Jr., Plaintiff, v. Abram M. VERMEULEN, Director of the Division of Budget and Accounting andState Comptroller, Department of the Treasury of the State of New Jersey,Defendant.

No. L--4781.

Superior Court of New Jersey Law Division.

April 23, 1956.

Judgment Affirmed May 31, 1956.

See 123 A.2d 21.

Milmed & Rosen, Newark (Leon S. Milmed, Newark, appearing), for plaintiff.

Grover C. Richman, Jr., Atty. Gen., of New Jersey (David D. Furman, Deputy Atty. Gen., appearing), for defendant.

EWART, J.S.C.

Plaintiff by this suit seeks a judgment in the nature of a Mandamus to compel defendant to restore plaintiff's name to the judiciary payroll of the State of New Jersey as of January 17, 1956, and to compel defendant to deliver checks or warrants in payment of plaintiff's salary as a judge of the Superior Court, that is to say, the salary that has accrued from the date mentioned.

Without having filed an answer, defendant on notice, supported by affidavits of Edward J. Patten, Secretary of State, and of David D. Furman, Deputy Attorney General, moves for summary judgment of dismissal. And plaintiff on notice, supported by affidavits of the plaintiff, and of Edward B. McConnell, Administrative Director of the Courts, and also in reliance upon matters made to appear in the deposition of the defendant taken by the plaintiff, makes a counter-motion for summary judgment in favor of the plaintiff.

The facts essential to a determination of this controversy are not in dispute. I find them to be as follows:

At the general election held November 4, 1947, the qualified voters of this State adopted a new Constitution known as the Constitution of 1947.

On December 15, 1947, pursuant to the provisions of Article XI, Section IV, paragraph 1 of the new Constitution the Governor nominated for appointment a chief justice and six associate justices of the Supreme Court under the new Constitution and those appointments were confirmed by the Senate the same day.

Immediately following the action described in the preceding paragraph, and on the same date, the Governor nominated for appointment to the Circuit Court, to succeed Hon. Albert E. Burling, plaintiff Lloyd 'for the term prescribed by law,' and the appointment was confirmed by the Senate on the same day.

On June 28, 1948 the Governor nominated for appointment as judge of the Superior Court the plaintiff Lloyd 'for the term prescribed by Paragraph 3 of Section VI of Article VI of said Constitution' and the appointment was confirmed by the Senate on the same day.

December 15, 1947 a commission over the signatures of the Governor and Secretary of State was issued to plaintiff as judge of the Circuit Court for a term described as 'for and during legal time.'

December 15, 1947 a commission over the signatures of the Governor and Secretary of State was issued to the plaintiff as judge of the Superior Court for a term described as 'for and during legal time prescribed in Paragraph 3, Section VI, Article VI, of the State Constitution adopted November 4, 1947.'

June 28, 1948 a commission over the signatures of the Governor and Secretary of State was issued to the plaintiff as judge of the Superior Court for a term described as 'for and during legal time prescribed by Paragraph 3, Section VI, Article VI, of the State Constitution adopted November 4, 1949.'

September 15, 1948 a commission over the signatures of the Governor and Secretary of State was issued to the plaintiff as judge of the Superior Court for a term described as 'for and during legal time'.

Oaths of office were taken, subscribed and filed by the plaintiff as follows:

(1) December 18, 1947 as judge of the Circuit Court.

(2) May 17, 1949 the oath of allegiance prescribed by the statute.

(3) September 13, 1948 as judge of the Superior Court.

Plaintiff served actively as judge of the Circuit Court from the date of his commission on December 15, 1947 until September 15, 1948, when the Judicial Article of the new Constitution became effective (Article XI, Section IV, paragraph 14), upon which last named date the circuit court was abolished (Article XI, Section IV, paragraph 3).

Plaintiff served actively and continuously as a judge of the Superior Court from September 15, 1948, when the said Judicial Article became effective, until on or about January 17, 1956, on which latter date plaintiff's name was removed from the judiciary payroll by the defendant on advice of the Attorney General. During the period last named plaintiff served as assignment judge in the Counties of Camden and Monmouth under assignment by the chief justice.

Since the removal of his name from the payroll, plaintiff has not actually presided over any courts nor attempted to perform judicial acts, but has attended from time to time at the court houses in Camden and Freehold, to which he was assigned by the chief justice as aforesaid, and has held himself in readiness to perform any judicial work that might be assigned to him.

Manuals entitled 'Division of Laws and Commissions, State Officers, Judges, Etc.,' prepared and issued by the Department of State of New Jersey, reveal that in such manuals issued on January 1, 1949, November 1, 1950, January 2, 1952, January 2, 1953, and December 1, 1955, plaintiff's name is listed as judge of the Superior Court for a term therein described as 'tenure.'

Plaintiff was paid regularly in semimonthly installments the salary prescribed by law for a judge of the Superior Court for the entire period from September 15, 1948 until January 15, 1956. Thereafter, under date of January 31, 1956 defendant caused to be issued a check or warrant to the order of plaintiff for the payroll period from January 16 to January 31, 1956, inclusive, in the amount of $66.12, representing a gross sum of $80.64 less withholding tax of $14.52, or a net amount of $66.12, which defendant had computed as the salary to which the plaintiff was entitled for the fraction of the semi-monthly period which the plaintiff had served after January 15, 1956. By letter dated February 9, 1956, plaintiff wrote defendant returning the said check or warrant for $66.12; demanding that his name be reinstated on the judiciary payroll as judge of the Superior Court as of the date of its removal by defendant, and that defendant draw and forward to the plaintiff a check or warrant to the plaintiff's order in payment of his full salary for the period from January 16 to January 31, 1956, inclusive. On February 14, 1956, defendant by letter acknowledged plaintiff's said letter of February 9; informed plaintiff that the Attorney General had advised the defendant that plaintiff's term as judge of the Superior Court had expired on September 15, 1955; and the defendant, by said letter, expressly refused to comply with the plaintiff's demand to reinstate plaintiff's name on the state payroll as judge of the Superior Court. Excepting for the check or warrant for $66.12 aforesaid, plaintiff has not been paid or tendered any salary as judge of the Superior Court since January 15, 1956.

Edward B. McConnell, Esquire, as Administrative Director of the Courts and as approval officer for the state judiciary, caused the payroll for the judiciary for the period from January 16 to January 31, 1956, both dates inclusive, to be certified by Michael F. Kocan, alternate approval officer for the state judiciary, and to be submitted to the Division of Budget and Accounting, said payroll as certified and submitted containing therein the name of Frank T. Lloyd, Jr., at the salary provided by law for judge of the Superior Court, viz., the sum of $833.33 for the semi-monthly period, less deductions for withholding tax, hospitalization and medical-surgical. And since Mr. McConnell's appointment as Administrative Director of the Courts on January 1, 1953, he has certified or caused to be certified every semi-monthly payroll for the state judiciary prior to the period last mentioned, and every such payroll so submitted and certified by him contained the name of Frank T. Lloyd, Jr. as judge of the Superior Court at the aforesaid salary provided by law.

Defendant Vermeulen, as Deputy and Acting Director of the Division of Budget and Accounting from January 19, 1954 until October 7, 1955, and from and after October 7, 1955 as Director of the Division of Budget and Accounting, examined, audited and approved each of the semi-monthly statements of indebtedness, or payroll of the judiciary, upon each of which semi-monthly statements were included the name of the plaintiff Lloyd as judge of the Superior Court, and during the said period commencing January 19, 1954 and terminating with the payroll period ending January 15, 1956, executed and and delivered his warrant checks in settlement of the plaintiff's semi-monthly salary as judge of the Superior Court. Defendant Vermeulen received from the Administrative Director of the Courts certified payrolls for the state judiciary, including the name of plaintiff as judge of the Superior Court during said period of time, and defendant 'passed it to payment' in each of the semi-monthly periods above mentioned after having examined, audited and approved the same, including payment of plaintiff's salary as judge of the said court.

In or about the month of October 1954 there was a hearing on the judiciary budget at which the defendant received from the Administrative Director a request for the state judiciary for the fiscal year to end June 30, 1956. That request contained the name of plaintiff Lloyd as judge of the Superior Court at an annual salary of $20,000. Defendant approved this budget request containing plaintiff's name for the whole of the fiscal year to end June 30, 1956. Said budget request was submitted by defendant Vermeulen to the Governor for inclusion in the Governor's budget request for the ensuing fiscal year; the same was approved by the Governor, including full salary...