On appeal from the Bergen County Circuit Court.
For the plaintiff-appellant, Morrison, Lloyd & Morrison (William J. Morrison, Jr.), and Merritt Lane.
For the defendant-respondent, Winne & Banta (Walter J. Winne).
The opinion of the court was delivered by
CASE, J. Plaintiff, one of the Common Pleas judges of the county of Bergen, sued for accumulated arrears in salary, the amount of which was in dispute for the reasons hereinafter stated. The judge of the Bergen County Circuit Court, sitting without a jury, awarded judgment to plaintiff for $16,978.50, the amount found to be due after the allowance of a series of deductions imposed by the Bergen county board of freeholders. Plaintiff contends that he is entitled to the full statutory salary and therefore appeals.
Plaintiff's five-year term commenced June 16th, 1932. His salary was then $13,000 per year, fixed by chapter 316, Pamph. L. 1931, a general act, which provided:
"1. In any county now or hereafter having by any State or Federal census three hundred thousand or more inhabitants, the salaries of all judges of the court of common pleas hereafter appointed in and for such counties shall be thirteen thousand dollars per annum, and in any county now or hereafter having by any State or Federal census five hundred thousand or more inhabitants, the salaries of all judges of the Court of Common Pleas hereafter appointed in and for such counties shall be fifteen thousand dollars per annum, payable in the manner now provided by law, and such judges hereafter appointed shall devote their entire time to their judicial duties and shall not engage in the practice of law. * * *."
The population of Bergen county was between three hundred thousand and five hundred thousand.
On February 4th, 1933, the legislature enacted chapter 17 of the Pamphlet Laws of that year, page 32, which provided that:
"The governing body of every county or municipality may, by resolution, direct that the treasurer or other like officer of any county or municipality, deduct from the salary or compensation to be paid to any officer or employe of or person holding a position under the government of this State, whose salary or compensation is paid by any such county or municipality, beginning with the first day of January, one thousand nine hundred and thirty-three, and ending on the thirty-first day of December, one thousand nine hundred and thirty-three, such sum of money as such governing body shall deem proper, but such deductions shall not exceed in percentage the amount authorized to be deducted in any schedule adopted or to be adopted by any such county or municipality for officers, employes and persons holding positions in any such county or municipality; provided, however, that in making deductions from salaries or compensation there shall be no discrimination among or between individuals in the same class of service."
By chapter 446, Pamph. L. 1933, p. 1244, and chapter 3, Pamph. L. 1935, p. 13, the provisions of the last named statute were continued until January 31st, 1936. On January 6th, 1933, before the statute was passed, appellant had voluntarily agreed that his salary for the year 1933 should be reduced by $1,640. On September 13th, 1933, the board of chosen freeholders of the county of Bergen, acting under the statute and without plaintiff's consent, imposed an additional deduction of five per centum. In January, 1934, the freeholders, again without plaintiff's consent, continued the deduction which totaled $2,290 for the year. On January 28th, 1935, the freeholders, no longer pursuing the formality of a percentage reduction, passed a resolution fixing Judge Delmar's salary, effective February 1st, 1935, at $10,734, payable in semi-monthly installments of $447.25.
There are two basic principles, one laid down in the language of our constitution, the other a judicial construction of that language, which must be observed in fixing the compensation of Common Pleas judges. The first is a portion of article IV, section VII, paragraph 11 of the constitution which provides that "the legislature shall ...