Vander Burgh v. Bergen County

• Citation: 120 N.J.L. 444,200 A. 561
• Decision Date: 24 June 1938
• Docket Number: No. 43.,43.
• Parties: VANDER BURGH v. BERGEN COUNTY.
• Court: United States State Supreme Court (New Jersey)

200 A. 561

120 N.J.L. 444

VANDER BURGH

v. BERGEN COUNTY.

No. 43.

Court of Errors and Appeals of New Jersey.

June 24, 1938.

BROGAN, Chief Justice, PERSKIE, Justice, and DEAR, WOLFSKEIL, RAFFERTY, and WALKER, Judges, dissenting.

Suit by Le Roy Vander Burgh against the County of Bergen to recover salary allegedly due him as Judge of the District Court of the First Judicial District of the County of Bergen. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment reversed.

Walter G. Winne, of Hackensack, for appellant. Le Roy Vander Burgh, of Hackensack, pro se.

CASE, Justice.

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The appeal is from a judgment for the plaintiff entered in the Bergen County Circuit Court upon the striking of the answer as "sham and frivolous". We observe no reason for condemning the answer as sham. Whether it is frivolous or not depends upon the applicability of the legal principles which it seeks to invoke.

The complaint alleges that plaintiff was, until May 20, 1937, the judge of the District Court of the First Judicial District of the County of Bergen and as such was entitled to receive, including the sum of $600 as judge of the Small Claims Division, the statutory salary of $4,100 a year payable by the County Treasurer, on the order of the Board of Chosen Freeholders, in equal half-monthly payments, that the salary for the years 1933 to 1936, inclusive, and for the month of January, 1937, computed on that basis, amounted to $17,141.66, that the amounts ordered by the Board to be paid, and which were paid, fell short of that total by $2,575, and that the suit was to recover the last mentioned sum, with interest and costs.

The answer denied that the plaintiff was entitled to receive the sum sued for or any sum beyond the moneys already paid. To the answer was appended, as a part thereof, four separate defenses which may be briefly stated as follows: The first formally asserted that plaintiff had been paid the salary to which he was entitled by law. The second set out at length an agreement, which will be more fully recited infra, made by the plaintiff with the Board. The third pleaded ch. 17, page 32, P.L.1933, expiring by its terms on January 1, 1934, but given successive extensions to January 31, 1937, P.L.1935, c. 3, p. 13, P.L.1936, c. 4, p. 14; also resolutions by the Board, acting under those statutes, fixing plaintiffs salary at the sums actually paid. The fourth asserts that the County Treasurer made half-monthly payments in prorata amounts in accordance with the schedule so fixed and that the plaintiff, before receiving each check, signed his name in receipt thereof upon the certified payroll in manner hereinafter set forth and, being given the checks, accepted and cashed them; and that the plaintiff's continuance in office was an assent to the reduction of his salary and his receipt of the checks and his signing of the certified payrolls throughout his whole term of office are an estoppel against now claiming additional compensation.

The proofs submitted by plaintiff on the motion to strike were not in substantial variance with the pleadings. There is before us, also, a stipulation which recites that the payments made as aforesaid were upon the certification of the Civil Service Commission after certification by the plaintiff in the following language: "I hereby certify that all names in the within payroll are employed solely in the proper duties of the positions and employment indicated, and are justly entitled to the amounts opposite their names. (Signed) LeRoy Vander Burgh, Department Head"; that the department payroll was on every such occasion signed by plaintiff, or his authorized agent, in substantially the following manner:

County Treasurer check No. 59658

Name of employee: Le Roy Vander Burgh

Office classification: Judge

Annual Salary: $4100.00

1933 basis: $3750.00

Amount due: $156.25

Payee's signature: LeRoy Vander Burgh;

but that each year, in anticipation of the annual budget, the plaintiff sent a requisition to the County in the sum of $4,100 as his anticipated salary.

In addition to the facts as pleaded or stipulated, mention should be made of some pertinent conditions, well within the field of general knowledge, which formed the foundation and the background for the temporary reduction in salaries of public officers and employees. Until the autumn of 1929 the country had enjoyed an era of extensive prosperity. Optimism was high, business boomed, prosperity was widespread and there was a general expectation that the country was on the verge of a participation in world markets beyond anything that had yet occurred. Salaries in private enterprise were marked up and those in public employment likewise. Then came the crash, followed by a measure of recovery and this by a yet deeper and more trying depression. The crises was acute. Pessimism became more rampant than optimism had been, with the result that all of the banks in the country were closed by presidential act. Proclamation No. 2039, 12 U.S.C.A. § 95 note. Business radically drew in its lines, reduced salaries and wages and discharged employees or put them on part time. The reaction on public funds inevitably followed. Taxes were not paid. Public bodies were without money for pressing needs, including payrolls. There was danger of municipal bankruptcy; not merely danger, but in some instances the fact. Resort was had to scrip, that is, to promises, as a temporary substitute for money. Counties were in yet a more tragic position than were municipalities, because a county is not a tax-collecting unit. The question in the mind of everyone who was burdened with, or had an interest in, public responsibilities was, what to do? And with this was an apprehension on the part of public officers and employees whether money would be forthcoming for the payment of their salaries and wages. The admissions in the pleadings, the signed stipulation and the pertinent facts in general knowledge provide a sufficient factual basis for a decision on the issues.

Our own legislature, having already taken some cognizance of the situation, immediately upon convening in January of 1933 addressed itself to the problem and passed a series of pertinent statutes. Chapter 1, page 11, of the laws of that year relates to reductions in salary of state officers and employees, chapters 2, 3, 4, 5 and 7, pages 12-16, 18, to the relief of the unemployed, chapter 9 to municipal defaults, R.S.1937, 52:27-2, and so on. Chapter 17, page 32, one of the series, is the first of the enactments pleaded in the answer, supra, as the authority for the temporary reduction in salary effected by the County of Bergen. The gist of it is to be found in our opinion in Delmar v. Bergen County, 117 N.J. L. 377, 189 A. 75, and need not be repeated. There was strong public sentiment back of that statute, and of like statutes applying to other branches of the government, and, on the whole, the complementary action thereunder by many of the counties and municipalities of the state was well received and acquiesced in by those whose compensation was cut.

In the instant case we have an example of the co-operative spirit manifested at the time by public officials toward the effort of governmental bodies to make their funds go around by reducing salaries. It is plaintiff's agreement, set up in the second separate defense, supra, made early in January, 1933, not with respect to ch. 17, P.L. 1933, for this had not yet been enacted, but under an authorizing section of the County Act, P.L. 1918, ch. 185, art. 4, sec. 401, R.S. 1937, 40:21-15, and it reads thus:

"Whereas, by statute it is lawful for the Board of Freeholders of this County to enter into an agreement with any officer or employee to perform the duties of his or her office at a salary less than the amount heretofore fixed, whereupon such officer or employee shall not be entitled to receive or recover from the County any salary greater than that fixed by this agreement; and

"Whereas, due to the prevailing financial condition and stress throughout the country, it is necessary and desirable that deductions be made in the cost of government, and especially that the amount of the budget of the County of Bergen for the year 1933 be reduced; and

"Whereas, it is my desire and purpose to cooperate with those whose responsibility it is to carry on the government of the County and provide funds therefor;

"Now Therefore, I, the undersigned, being an employee and/or official of the County of Bergen, —— Department, do hereby agree to accept a deduction from my salary for the year 1933 of five per cent (5%), on any sum up to and not exceeding $1,200.00, and ten per cent (10%) on any balance over $1,200.00 up to $5,000.00, and 15% of any sum above $5,000 hereby waiving the difference between the salary heretofore fixed and sum payable with deductions. Accordingly, I hereby authorize the Treasurer of the County of Bergen to deduct said percentage from my salary, said deductions to be apportioned over the entire year 1933.

"[Signed] LeRoy Vander Burgh."

The deductions made under that agreement are a part of the moneys sued for and are included in the judgment under appeal.

Notwithstanding the submission to the Board by plaintiff, each year, as a preliminary to the setting up of the budget, of the original statutory figure as the anticipated salary, there is nothing to suggest that after the Board had adopted its yearly resolution reducing salaries under the assumed authority of the statute of the respective year, plaintiff voiced any remonstrance or did aught to suggest that he was not in perfect accord with the procedure. Quite otherwise. He, as the head of his department, certified as to each payroll, his name being written there with the others, that all were justly entitled to the amounts opposite their names. If one is to be captious, he may say that the plaintiff did not certify that the nominees were not justly entitled to...