Winne v. Bergen County, 15959

• Decision Date: 01 August 1955
• Docket Number: No. 15959,15959
• Parties: Walter G. WINNE, Plaintiff, v. The COUNTY OF BERGEN, a body politic and corporate of the State of New Jersey, Defendant. . Law Division, New Jersey
• Court: New Jersey County Court

Page 532

36 N.J.Super. 532

116 A.2d 544

Walter G. WINNE, Plaintiff,

v.

The COUNTY OF BERGEN, a body politic and corporate of the

State of New Jersey, Defendant.

No. 15959.

Bergen County Court.

Law Division, New Jersey.

Aug. 1, 1955.

McGlynn, Weintraub & Stein, Newark, attorneys (Edward R. McGlynn, Newark, appeared), for plaintiff.

Milton T. Lasher, Hackensack, attorney for defendant.

O'DEA, J.C.C.

The plaintiff and the defendant by motion and cross-motion respectively each seek summary judgment on the pleadings and stipulation of fact.

The plaintiff was duly re-appointed County Prosecutor of Bergen County on April 25, 1949 for a term of five years under the New Jersey Constitution of 1947 (Art. VII, § II, par. 1) at a statutory annual salary of $10,000 as fixed by resolution of and payable by the Board of Freeholders of the County of Bergen in semi-monthly installments on the fifteenth and last day of each month under R.S. 2:182--10 and 11, and N.J.S.A. 2A:158--10 and 13.

After the plaintiff had qualified and entered upon the discharge of the duties of the office, the Board of Freeholders of Bergen County on finding that an investigation of the Attorney General of the State of New Jersey, made since October 20, 1950 when the Attorney General had assumed jurisdiction in Bergen County over the investigation and prosecution of gambling activities, disclosed that a larger staff from the Attorney General's office was necessary to prosecute the criminal business of the county, determined it would be wise for the State to assume full responsibility for the operation of the office of county prosecutor, thereupon, on December 1, 1950, adopted the following resolution:

'Now Therefore Be It Resolved, that the Attorney-General of the State of New Jersey be requested in writing by the Board of Chosen Freeholders of the County of Bergen to assume immediately the full responsibility for the prosecution of all criminal business in this County.

'Be It Further Resolved, that the Attorney-General of the State of New Jersey be advised that all personnel and facilities of the County, of which he wishes to avail himself, shall be placed at his disposal to the end that justice will be served without fear or favor in an expeditious and thorough investigation of gambling and related matters.'

A copy of the resolution was delivered to the plaintiff in the county prosecutor's office at 4 p.m. on December 1, 1950. At 5 p.m. the same day an Assistant Attorney General took complete possession of the county prosecutor's offices, files cabinets and desks to the exclusion of the plaintiff and retained such exclusive possession thereof, investigating and prosecuting therefrom all the criminal business of the county through the end of the term of office of the incumbent plaintiff, April 25, 1954.

During this period plaintiff performed no services as county prosecutor and received no salary.

Plaintiff seeks recovery from defendant of his salary as county prosecutor for the period December 1, 1950 to April 25, 1954 amounting in the aggregate to $34,005.32.

Defendant denies plaintiff continued to hold the office of county prosecutor through the period December 1, 1950 to the end of the appointed term; denies plaintiff performed all the obligations and conditions precedent to compensation and asserts by way of four separate defenses that: (1) there is no contractual or statutory duty on the defendant to pay plaintiff for services not rendered; (2) plaintiff was superseded as county prosecutor by the Attorney General during the period and having performed no services as county prosecutor during such period failed to fulfill such condition precedent to his right to receive the salary of the office; (3) plaintiff failed to test or set aside the action of the Attorney General superseding him as county prosecutor and is therefore estopped from asserting, and waived, any claim to salary or compensation for the period; (4) the complaint fails to state a claim on which relief can be granted.

The office and term of county prosecutor are created and fixed by the Constitution which provides that county prosecutors shall be nominated and appointed by the Governor with the advice and consent of the Senate for a term of five years. N.J.Const.1947, Art. VII § II, par 1. The office and term of a constitutional public officer may be terminated only by impeachment, N.J.Const.1947, Art. VII § III, resignation, death of the incumbent, or by forfeiture for conviction of a crime touching the administration of the office or which involves moral turpitude (R.S. 2:160--9, N.J.S.A. 2A:135--9). Therefore, plaintiff's title to and term of office were not disturbed by the action of the defendant requesting the Attorney General to assume the administration of the criminal business of the county under the resolution of December 1, 1950. The Legislature could not by such method vacate an office created under the Constitution. State v. Wrightson,56 N.J.L. 126, 28 A. 56, 22 L.R.A. 548 (Sup.Ct.1893); Imbrie v. Marsh,3 N.J. 578, 71 A.2d 352, 18 A.L.R.2d 241 (1950). There was no vacancy created in the office of county prosecutor by the action of the board of freeholders. The presence of the Attorney General in the county was not as an appointed county prosecutor but in his capacity as Attorney General under statutory direction which was not incompatible with the office of prosecutor. The fact is, he was not assuming to act as the prosecutor. He was discharging his statutory duty as Attorney General in performing the work that is ordinarily performed by the prosecutor. State v. McFeeley, 136 N.J.L. 102, 54 A.2d 797 (Sup.Ct.1947).

The salary of the county prosecutor during the term of office, including that part of any such term when the Attorney General is performing the duties of the office, is expressly fixed and regulated by statute. R.S. 2:182--10 and 11, and N.J.S.A. 2A:158--10 and 13 both provide that the prosecutor shall receive an annual salary within minimum and maximum amounts to be fixed by resolution of the board of freeholders of the county and paid at the same times and in the same manner as other county salaries are paid. The annual salary so established by the Legislature to be paid by the board of freeholders of the County to the incumbent is a legal and binding obligation of the county to the office holder. Delmar v. Bergen County, 117 N.J.L. 377, 189 A. 75 (E. & A.1936); Orlando v. Camden County, 132 N.J.L. 173, 39 A.2d 238 (Sup.Ct.1944).

The Legislature has further provided what effect compensation paid to the Attorney General for performance of the duties of the prosecutor shall have upon the salary provided for the latter, and the time of payment thereof during the administration of the criminal business of the county by the Attorney General. Under R.S. 52:17A--5, N.J.S.A. authorizing the Attorney General to take over the duties of the county prosecutor the Legislature expressly provides 'Whenever the criminal business * * * of any county is prosecuted by the Attorney-General * * * there shall be paid, by the treasurer of the county, such sum for that special service as the assignment judge of the Superior Court of the county or a judge of the County Court of said county shall certify and fix, on the application of the Attorney-General; * * * provided however, that No compensation so allowed shall affect the salary of the county prosecutor or assistant prosecutors if any in said county. * * *'

The Legislature has further provided for payment of the salary of the county prosecutor during the attendance of the Attorney General on the duties of the office of the prosecutor. R.S. 2:182--12; N.J.S.A. 2A:158--14 both provide where the attendance of the Attorney General shall continue for a period of more than three months, the payment of the salary to the prosecutor shall be suspended after such three months period and until the attendance of the Attorney General shall have terminated and the prosecutor shall have resumed the discharge of his duties. The earlier statute R.S. 2:182--12, expressly provided, 'When the period of suspension of payment has ended, the total amount of such salary or other compensation held in suspense shall be paid to the prosecutor of the pleas.' This clause was omitted from the re-enactment under N.J.S.A. 2A:158--14 and defendant relies on this omission as an expression of the intent of the Legislature that for the period of suspension of payments of salary, as provided in the statute, the salary of the prosecutor is suspended.

In construing a particular statute, or in the interpretation of its provisions, all statutory enactments relating to the same subject, or having the same general purpose, should be read in connection with it as together constituting one law although each may have been enacted at different times and contain no specific reference to one another. In re Book's Will, 90 N.J.Eq. 549, 107 A. 435 (E. & A.1919); Hackensack Water Co. v. Ruta, 3 N.J. 139, 69 A.2d 321 (1949); Goff v. Hunt, 6 N.J. 600, 80 A.2d 104 (1951); Horwitz v. Reichenstein, 15 N.J. 6, 103 A.2d 881 (1954).

The seven statutes on the subject of the salary of the prosecutor and manner of payment thereof during the term of office and any part of the term when the Attorney General attends the administration of the criminal business of the county are In pari materia. Therefore these seven statutes should be read together in construing the intent of the Legislature in respect to suspension of payment of salary during the period. By separate enactments the Legislature has expressly provided for the fixed annual salary of the prosecutor. R.S. 2:182--10, N.J.S.A. 2A:158--10. By separate enactments it has provided for the time of payment of the salaries. R.S. 2:182--118 N.J.S.A. 2A:158--13. It has expressly provided that the salary of the prosecutor shall not be affected by the compensation paid the Attorney General. R.S. 52:17A--5, N.J.S.A....