N.J. State Patrolmens Benev. Ass'n v. City Of Hoboken.

• Decision Date: 23 May 1945
• Parties: HOBOKEN LOCAL NO. 2, NEW JERSEY STATE PATROLMENS BENEV. ASS'N v. CITY OF HOBOKEN.
• Court: New Jersey Supreme Court

44 A.2d 329

HOBOKEN LOCAL NO. 2, NEW JERSEY STATE PATROLMENS BENEV. ASS'N

v.CITY OF HOBOKEN.

Supreme Court of New Jersey, Hudson County.

May 23, 1945.

Action by Hoboken Local No. 2, New Jersey State Patrolmens Benevolent Association, against the City of Hoboken, for compensation alleged to be due certain members of the city police department for serving one day in each week in excess of the limitation of six days of service in nay one week prescribed by statute. On defendant's motion to strike the complaint for legal insufficiency.

Motion granted.

Rothbard & Talisman, of Newark, for plaintiff.

John J. Fallon, of Hoboken, for defendant.

ACKERSON, Commissioner.

Plaintiff, an unincorporated association, sues as the assignee of the claims of sixtysix members of the uniformed paid police department of the City of Hoboken for compensation alleged to be due to them for serving one day in each week, from March 12, 1935 to the institution of this action, in excess of the limitation of six days of service in any one week prescribed by R.S. 40:47-17, N.J.S.A.

The statute (R.S. 40:47-17, N.J.S.A.) provides as follows: ‘The days of employment of uniformed members of any paid police department in any municipality, * * * shall not exceed six days in any one week, but in case of an emergency the officer, board or other official having charge or control of all such police departments shall have full authority to summon and keep on duty any and all such officers during the period of the emergency, but within twelve months after such emergency each uniformed member of such police department shall be given a day off duty for each extra day so served by him during the emergency.’

The matter is presently before the court on defendant's motion to strike the complaint on the grounds of its alleged legal insufficiency, and because an unincorporated association has no legal capacity to hold personal property or to contract, and, therefore, the aforesaid assignments of claims to the plaintiff are invalid and ineffective to sustain this action.

Two theories for recovery are advanced to support each individual claim to compensation, and they are set forth in separate counts in the complaint. In other words each assigned claim is set up in two separate counts.

In the first count respecting each of said claims, after stating the employment of the particular policeman from March 12, 1935 to the institution of this action, it is alleged that ‘by virtue of the statute’ (R.S. 40:47-17, N.J.S.A.) it became the duty of the defendant to regulate said employment in accordance therewith. It is then alleged that it also ‘became the duty of the defendant by virtue of the statute in such case made and provided, as aforesaid, in the event that it employed the said [policeman] for more than six (6) days in any one (1) week to compensate [him] for the said extra day that it so employed him.’ It is further alleged that the defendant employed the said policeman and that he performed services for the defendant ‘for seven (7) days in each week’ during all of the aforesaid period, ‘and the said defendant failed to give [him] days off for each extra day served * * * during any emergency. It then and there became the duty of the defendant * * * to compensate the said [policeman] for the reasonable value of the * * * services he rendered on the 7th day of each week * * *’ as aforesaid, which has not been done.

Obviously the cause of action thus attempted to be asserted is predicated solely on the aforesaid statute. The question presented is: Does this statute give rise to a cause of action to the particular policeman because he was required or permitted to work more than the scheduled six days a week, and in case of an emergency was not given a day off for each extra day served during such emergency?

It is a well-settled rule that a person accepting a public office with a fixed salary is bound to perform the duties of the office for the salary. He cannot claim additional compensation for the discharge of these duties, even though the salary may be a very inadequate remuneration for the services. Nor does it alter the case that by subsequent statutes or ordinances his duties are increased and not his salary. His undertaking is to perform the duties of his office whatever they may be from time to time during his continuance in office for the compensation stipulated,-whether these duties are diminished or increased. Whenever he considers the compensation inadequate, he is at liberty to resign. Evans v. Inhabitants of City of Trenton, 24 N.J.L. 764, 766; State (Honsey, Prosecutor) v. Mayor, etc., of City of Paterson, 40 N.J.L. 186; Knight v. Freeholders of Ocean County, 48 N.J.L. 70, 3 A. 344; Seymour v. City of Orange, 74 N.J.L. 549, 65 A. 1033. A policeman is a public officer within this rule. Speck v. Borough of Fairview, 145 A. 618, 7 N.J.Misc. 410.

Plaintiff acknowledges this rule but claims that the aforesaid statute (R. S. 40:47-17, N.J.S.A.) renders it inapplicable in the present case because, as stated in its brief, the intent of the legislature was to correct the mischief of the old rule whereby policemen could be required ‘to work for unusually lengthy periods without extra compensation’, and the statute, by defining the regular working time of such officers, authorizes recovery of compensation for overtime service.

The difficulty with this contention lies in a misconception of the purpose of the legislation in question. It was not designed, as plaintiff supposes, to increase the compensation of policemen for overtime service as in that type of statutes commonly referred to as ‘wages and hours' legislation, but rather to protect the health and increase the efficiency of policemen by requiring time off for rest, pleasure and recreation. Therefore, the cases construing statutes fixing a minimum wage, or statutes providing for or permitting overtime pay, are not applicable to the situation before us. This statute relates exclusively to the health of the policemen and not to their compensation. That this is so is manifested by the fact that where overtime service is permitted in cases of emergency, the act does not provide for extra monetary compensation therefor, but instead provision is made for a day off for each extra day served during such emergency. This statute makes no provision for any other recompense and clearly does not provide that the municipality must compensate a policeman in money if he does not get his days off as required thereby. It gives no civil remedy or private right of action for overtime service. This statute clearly indicates, as already observed, that the sole purpose of its enactment was to provide for the health and efficiency of policemen. Pericin v. Denburg's Modern Bakery, 130 N.J.L. 547, 33 A.2d 825. The case last cited is in point and controlling upon the proposition that the statute in question does not confer a right to compensation for overtime services. It is also authority for the proposition that, even if this count had not been based upon a supposed right conferred by statute, and excluding the averments to that end, the remaining allegations would not give rise to a cause of action under the common law for damages in quasi contract on a quantum meruit basis. However, the question of an implied contract on common-law principles will be more fully and appropriately dealt with hereafter in considering plaintiff's second theory of recovery.

Turning now to the second count respecting the claim of each individual policeman, We find the pertinent averments to be as follows: ‘On the aforesaid date of March...