On appeal from the Supreme Court, Camden County Circuit.
For the plaintiffs-appellants, Carl Kisselman.
For the defendant-respondent, Walter S. Keown and William A. Early King.
The opinion of the court was delivered by
WELLS, J. This is a suit by several plaintiffs against the defendant, County of Camden (hereinafter called County or defendant), for salary alleged to be due them as "court attendants." Their action is based upon the failure of the County to pay them salaries in accordance with chapter 152, Pamph. L. 1937; R.S. 2:16-40 (hereafter referred to as act of 1937), which provides that in each county having a population between one hundred and seventy-five thousand and four hundred and seventy thousand inhabitants (Camden county being within that classification), the court attendants engaged in attending the Circuit Court, Court of Oyer and Terminer, Court of Common Pleas, Court of Quarter Sessions, and Criminal Judicial District Courts, shall receive and be paid monthly in lieu of all fees, mileage, or other allowances, an annual salary ranging from $2,000 to $2,800, depending upon the number of years of service.
The answer of the County was a general denial of the allegations of the complaint and it set up several defenses, one of which was that plaintiffs were not "court attendants" within the provisions of said act of 1937, and were therefore not entitled to the salary specified therein. The County contended that the plaintiffs were sheriff's employes hired under authority of chapter 53, Pamph. L. 1906, as set forth in R.S. 40:41-31, as follows:
"The sheriff shall select and employ the necessary deputies, chief clerks and other employes, who shall receive such compensation as shall be recommended by the sheriff and approved by the board of chosen freeholders. * * *"
Furthermore, defendant says that the proofs clearly show that the status of each of the plaintiffs was that of a constable and their rate of pay was such as was fixed for constables attending courts by chapter 89 of Pamph. L. 1926, which act was not modified in any respect by the act of 1937 but still remains in full force and effect as found in R.S. 2:16-43 as follows:
"The constables of the several counties shall receive for each and every day they are engaged in attendance upon the circuit court, the court of common pleas, the court of oyer and terminer, and the court of quarter sessions in their respective counties, the sum of five dollars, which shall be in full and in lieu of all mileage or other allowances authorized prior to March twenty-third, one thousand nine hundred and twenty-six."
It is undisputed that up until the enactment of the said act of 1937, which became effective June 2d, 1937, the plaintiffs had been paid $5 per day when attending court and $4.50 a day when acting as guards at the jail; that the County continued to pay, and the plaintiffs accepted, without protest, this per diem payment for the days they actually worked up to June 2d, 1937; this suit being brought to recover the difference between the per diem compensation received by the plaintiffs for services performed by them subsequent to June 2d, 1937, and the salaries they claim to be due them as "court attendants" under the said act of 1937.
The plaintiffs deny that they were appointed under chapter 89, Pamph. L. 1926, supra, but claim that their appointments were made under the provisions of chapter 248, Pamph. L. 1916, as re-enacted in R.S. 2:16-38, which is as follows:
"The sheriff of each county of this state shall appoint, from the body of the electors of his county such and so many persons as may be necessary to attend upon the several courts of his county and to perform the duties required to be performed by constables of the respective counties summoned to attend such courts."
At the conclusion of the case there were motions for direction of a verdict made by plaintiffs and defendant.
It is the contention of the plaintiffs that there were no disputed questions of fact and that the issue was one for the court and required the ...