Morrissey v. Holland
| Decision Date | 27 May 1963 |
| Docket Number | No. L--11349,L--11349 |
| Parties | Donald J. MORRISSEY, Plaintiff, v. Arthur J. HOLLAND, Individually and as Mayor of the City of Trenton, Defendant. |
| Court | New Jersey Superior Court |
Bertram Lefkowitz, Trenton, for plaintiff.
Robert R. Ross, City Atty. (Harvey L. Stern, Asst. City Atty., appearing), for defendant.
BARLOW, J.C.C. (temporarily assigned).
Plaintiff institutes this action to recover back salary which he contends is due and owing but was not paid to him during the period he was illegally discharged from his position as a municipal employee of the City of Trenton.
Prior to July 1, 1962 plaintiff was a duly appointed tax assessor for the City of Trenton, his term of office to expire on July 1, 1965. Since July 1, 1962 the City of Trenton has operated under a new form of government provided for by the provisions of the Faulkner Act, previously adopted by its citizens.
On July 1, 1962 defendants, acting within the authority which he considered to be conferred upon him by the provisions of the newly-adopted Faulkner Act, terminated the employment of plaintiff. Thereafter, on January 1, 1963, plaintiff was reinstated and restored to his former position.
During the fall of 1962, following his discharge but prior to his reinstatement, plaintiff appeared on one or more occasions before the Mercer County Board of Taxation as an expert witness on behalf of three property owners who were appealing assessments levied by the City of Trenton for the tax year 1962. His testimony was, of course, necessarily adverse to the position taken by the city through its tax assessor's office.
Following his reinstatement plaintiff instituted this action, seeking a determination adjudging the termination of his employment to be illegal, and demanding payment of the salary due and owing to him but unpaid during the period between his discharge and his reinstatement. He now moves for a summary judgment.
Defendant does not resist the contention that plaintiff's discharge was illegal; that while defendant considered that he was acting properly within the limits of the authority thought to be conferred upon him by the newly-adopted Faulkner Act, such an interpretation, he concedes, was erroneous in light of the decision in Beirne v. Gangemi, 74 N.J.Super. 557, 181 A.2d 800 (App.Div.1962), which decision was published following plaintiff's discharge. Indeed, as a result of the decision aforesaid, plaintiff was reinstated by the defendant and resumed his employment on January 1, 1963.
Accordingly, the only issue here then remaining to be resolved is whether or not plaintiff is entitled to recover the salary he lost during the period of his discharge.
N.J.S.A. 40:46--34 provides 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; * * *.'
That an illegally dismissed municipal employee may recover back salary, even though he was gainfully employed during the time of his dismissal, is made quite clear by the language of D'Elia v. Jersey City, 57 N.J.Super. 466, 155 A.2d 13 (App.Div.1959). In that case the Appellate Division affirmed a judgment of the lower court, which held that:
'(T)he plaintiff was entitled to recover his full back salary from the date of discharge to the date of reinstatement * * * rejecting the contention of the city that the back pay owing to the plaintiff should be reduced by the amount of his earnings as a process server.'
The appellate court, referring to the statutory provisions aforesaid, stated:
'The purpose of the statute, of course, was to eliminate from the law the harsh, common-law rule that the right of a public officer to receive or recover wages is dependent entirely upon the performance of service.' (57 N.J.Super. at p. 468, 155 A.2d at p. 14)
citing, with approval, DeMarco v. Board of Chosen Freeholders of Bergen, 21 N.J. 136, 121 A.2d 396 (1956).
In Ratajczak v. Board of Education of City of Perth Amboy, 118 N.J.L. 311, 192 A. 591 (Sup.Ct.1937), affirmed 119 N.J.L. 433, 196 A. 739 (E. & A.1938), the court was confronted with precisely the same situation with which we are here concerned, under an earlier version of the aforementioned statute. In that case the Supreme Court agreed with the lower court in its determination that
'* * * the statute * * * (was) intended by the Legislature to change the rule of the common law, and in broad...
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White v. North Bergen Tp.
...would be a gross invasion of the legislative prerogative in this area of the social sphere." Id. at 470, 155 A.2d at 15. The holdings in Morrissey, supra, and McGrath, supra, followed this v. Jersey City, 70 N.J.Super. 143, 175 A.2d 278 (Law Div.1961), Aff'd 38 N.J. 31, 183 A.2d 7 (1962); D......
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Spencer v. Laconia School Dist.
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Rosetty v. Township Committee of Hamilton Tp., Mercer County
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