Colie, Eastwood and Jayne. The opinion of the court was delivered by Eastwood, J.A.D.
Plaintiff, Lyman L. Parks, Chief of the Union County Park Police, was awarded a summary judgment by the Union County Court, Law Division, in the sum of $320.01, representing his salary and bonus for the period from July 25, 1948, to August 18, 1948, while on leave of absence to engage in field training with the Organized Reserve Corps of the Army of the United States. From that judgment defendant appeals.
Plaintiff asserts and defendant denies that defendant is an agency of the County of Union; that by virtue of R.S. 38:23-1 plaintiff was entitled to be paid in full for the period of his absence from his duties as Chief of Police while he participated in field training as a member of the Organized Reserve Corps of the Army of the United States, for which he was paid a sum in excess of his wages and bonus.
R.S. 38:23-1, around which the controversy centers, provides as follows:
"An officer or employee of the state or a county or municipality, who is a member of the organized reserve of the army of the United States, United States naval reserve force and United States marines corps reserve, or other organization affiliated therewith, shall be entitled to leave of absence from his respective duty without loss of pay or time on all days on which he shall be engaged in field training. Such leave of absence shall be in addition to the regular vacation allowed such employee."
It is conceded by the parties that the Park Commission was established under authority of R.S. 40:37-96 et seq. A careful scrutiny of the statutory provisions convinces us that the Union County Park Commission is an agency of the county. Its creation, structure, purpose and operation [7 NJSuper Page 8] manifestly support our conclusion. The first step in the creation of a park commission is initiated by the county board of freeholders, as a result of which the question of its establishment is subject to a referendum of the voters; if created, the cost of its operation is borne by local taxation; the money essential for its operation is requested in writing by the park commission to the board of freeholders, who, "* * * after a public hearing on said request, and after determining in their discretion that funds for the maintenance of said county park system are necessary, may hereafter annually appropriate funds for the maintenance of said county park system; * * *" R.S. 40:37-101.1; that the funds, after they "shall have been raised and appropriated, shall be paid over to and expended by the said park commission of said county for the maintenance of said county park system in the same manner as any other department of government of said county." R.S. 40:37-101.2; that "The commission may acquire in its corporate name, for the benefit of the county, by purchase, gift, devise or eminent domain, any real estate or right or interest therein within the county * * *" R.S. 40:37-104; "To meet the expenses incurred under the provisions of sections 40:37-96 to 40:37-174 of this title in addition to the sum of money received from benefit assessments as herein provided and otherwise, the board of chosen freeholders of the county shall from time to time, on the requisition of the park commission, borrow money in the name and on the credit of the county, by issuing bonds of the county to a sum in the aggregate not exceeding two million five hundred thousand dollars." R.S. 40:37-129; the interest and principal of all such bonds "* * * shall be the debt or obligation of the county wherein they are issued, and the payment thereof shall be provided for by taxation in the same manner as other debts and obligations of the county." R.S. 40:37-131. It is readily discernible from the foregoing statutory powers vested in the County Park Commission that it is an instrumentality which is undeniably an adjunct of the county government; that it is established for the beautification and resulting
attractiveness of the county and for the benefit of all of the residents; that the cost of its acquisition, operation and maintenance becomes the burden and responsibility of all of the taxpayers of the county. As stated in Glick v. Trustees of Free Public Library , 2 N.J. 579 (1949), at pp. 583, 584:
"* * * It is an agency of the municipality notwithstanding its incorporation as a body politic. That in itself does not give rise to a relationship radically different in character from that which would otherwise exist. It is that substance and not the form of the creation that is the key to the legislative design."
Cf. Trustees v. Civil Service Commission , 83 N.J.L. 196 (Sup. Ct. 1912); affirmed, 86 N.J.L. 307 (E. & A. 1914). It necessarily follows that plaintiff is an employee of Union County.
The defendant contends that the section of the statute under which plaintiff's action is brought is limited in its operation by R.S. 38:23-3, which provides, inter alia:
"No greater portion of the salary or compensation of a commissioned officer as an employee of a department of the state or municipal government shall be paid to him under this section than will, when added to his salary as such commissioned officer, equal the amount paid to him by the state or municipal department before entering the military or naval service."
It is apparent that R.S. 38:23-1, under which an employee "who is a member of the organized reserve * * * shall be engaged in field training," applies specifically to situations that arise during "peace time." On the other hand, R.S. 38:23-3 is invocable, in the discretion of the employer, in situations where employees "are engaged in a branch of the military or naval service of the national government or of this state" in time of war or national emergency -- a duty of a more permanent character, entirely unrelated to a peace time training program. It is significant that R.S. 38:23-3 was enacted in 1918 (P.L. 1918, c. 16), while we were engaged ...