For the prosecutor, Alexander Waugh.
For the respondents, Walter D. Van Riper, John W. Griggs and Charles E. McCraith, Jr.
Before Justices Bodine, Heher and Wachenfeld.
The opinion of the court was delivered by
BODINE, J. It appears as follows from the findings of the Civil Service Commissioner that: "On March 5th, 1946, the Mayor and Council of the Borough of Verona adopted a resolution providing for a bonus of fifteen per cent. of the annual salary or pay as provided in the annual salary ordinance to all persons holding at the time any office, position or employment under the jurisdiction of the Mayor and Council of the Borough of Verona, provided that the annual salary or pay of such person is $2,499 per year or less and that such person is a full-time employee of the Borough. This action was taken under the provision of Pamph. L. 1941, ch. 404, as amended by Pamph. L. 1943, ch. 31.
"On April 29th, 1946, Pamph. L. 1946, ch. 193, a supplement to Pamph. L. 1941, ch. 404, became effective. This statute provides that when and as bonuses are granted under the 1941, as amended by the 1943, statute, that where such 'bonus payments have been heretofore or shall hereafter be granted and paid in any department under the jurisdiction of the * * * governing body * * * by whatsoever name, of any * * * municipality * * * such bonus shall apply and be paid generally to all persons holding office, position or employment in such department without discrimination among such persons.'"
It was the conclusion of the Civil Service Commission: "that the granting of a bonus to certain employees of the Borough of Verona and the withholding of the same or a comparable bonus to certain other employees as prescribed by the resolution * * * adopted by the Mayor and Council of the said Borough of March 5th, 1946, do not comply with the requirements and limitations expressly provided in Pamph. L. 1946, ch. 193, and that the plan so provided and set forth in the said resolution operates to discriminate between and among employees in at least some departments of the Borough of Verona."
The resolution in question granted a bonus to those persons receiving an annual compensation of $2,499 or less and failed to grant a bonus to those receiving more.
It is clear at the outset that the borough did not comply with the mandate of the statute. The borough had adopted the provisions of the Civil Service Act. The provision for bonus payments are to be found in R.S. 40:21-13. The first provision is in Pamph. L. 1941, p. 1033, as amended by Pamph. L. 1943, p. 65; Pamph. L. 1944, p. 17; Pamph. L. 1945, p. 767, and the chapter in question, Pamph. L. 1946, p. 786.
The first question necessary for our determination is whether the prosecutor's resolution was discriminatory. It seems to us that it clearly was. It made a distinction between employees in the Civil Service receiving one amount of salary and the employees in the same service receiving ...