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Ervolini v. County of Camden

Decided: December 15, 1941.

KATHRYN ERVOLINI, PROSECUTOR,
v.
COUNTY OF CAMDEN AND THE BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF CAMDEN, RESPONDENTS



On certiorari.

For the prosecutor, Carl Kisselman.

For the respondents, Vincent L. Gallaher.

Before Justices Bodine, Perskie and Porter.

Porter

The opinion of the court was delivered by

PORTER, J. The legality of a resolution of the respondent Board of Chosen Freeholders (hereinafter called the Board), in rescinding a prior resolution fixing the salaries of constables and court attendants in Camden County is before us for review on certiorari.

The statute, N.J.S.A. 2:16-45, provides that constables and court attendants in counties with inhabitants of from 200,000 to 300,000 shall receive annual salaries of not less than $1,092 to "be fixed by the board of chosen freeholders of any such county upon the recommendation of the judge of the court of common pleas * * *." On March 13th,

1940, by resolution of the Board in pursuance of this statute and upon recommendation of the Judge of the Court of Common Pleas the salaries of the constables and court attendants were fixed at $1,092 per annum. This resolution was rescinded by the Board on April 23d, 1941, by the challenged resolution.

The Civil Service status of these court officers and their right of compensation has been settled by this court. Luker v. Civil Service Commission, 126 N.J.L. 229; McCullough v. County of Camden, 126 Id. 232. Thus failing to supplant these officers the present plan to reduce their compensation sets on foot another attempt to accomplish the same result. But whether or not the Board is acting in good faith is perhaps beside the point.

The sole questions to be decided are whether the statute, N.J.S.A. 2:16-45, supra, under which the resolution of March 13th, 1940, fixing the salaries is mandatory or not and if so whether or not it is invalid as special legislation regulating the internal affairs of a county under the provisions of article 4, section 7, paragraph 11 of the Constitution.

We think that it is mandatory and that it is not class legislation.

The clear intention of the legislature, as expressed in the statute, is that all constables and court attendants assigned to the mentioned courts in the designated counties "shall be fixed by the Board of chosen freeholders of any such county upon the recommendation of the judge of the court of common pleas of any such county, and shall be paid semi monthly." The recommendation of the judge is a prerequisite to the fixing of salaries and is entirely discretionary but when given, as here, it becomes mandatory on the Board to act in accordance with the recommendation. We can read no other meaning in the statute. Where the word "shall" is used in a statute the presumption is that its use is imperative and not merely directory unless the character of the legislation or the context justifies a ...


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