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Lynch v. Borough of Edgewater

Decided: June 25, 1951.

SYLVESTER J. LYNCH, PLAINTIFF-APPELLANT,
v.
BOROUGH OF EDGEWATER, DEFENDANT-RESPONDENT



Eastwood, Bigelow and Freund. The opinion of the court was delivered by Eastwood, J.A.D.

Eastwood

[14 NJSuper Page 330] The question for determination is whether the plaintiff is entitled to payment of salary as a

borough policeman for a period of 90 days while he was on leave of absence to attend an Army Reserve Officers' training course.

The facts are not in dispute. The plaintiff, an employee of the borough police department was, on September 16, 1948, and for many years prior thereto, a member of the Organized Reserve of the Army of the United States, holding the rank of major. In July, 1948, the plaintiff voluntarily applied for active training with the United States Army. The application was accepted and plaintiff was ordered to attend the "Associate Basic Course" at the Transportation School, Fort Eustis, Virginia, for a period of 90 days, effective September 17, 1948. On September 16, 1948, plaintiff applied to the mayor and council of the borough for leave of absence from his duties, which was granted by the borough, without pay. Upon completion of his 90-day training period, plaintiff returned to his regular duties as a patrolman. The borough having refused to accede to the plaintiff's demand for payment of his salary for the period covered by his absence, he instituted an action for the recovery thereof in the amount of $875.01, basing his claim upon the provisions of R.S. 38:23-1. The Bergen County District Court held that the plaintiff, having voluntarily applied for active duty training, was not engaged in field training as contemplated by R.S. 38:23-1 and, therefore, was not entitled to recover his salary for the period in question. Plaintiff appeals from the trial court's judgment.

The defendant contends that the term "field training" as used in R.S. 38:23-1 meant the 15-day maximum period for which a reserve officer could be compelled to serve in any one year during peace time and not a greater period for which any officer might volunteer. It is argued that the term "field training" connotes the annual 15-day training period which troops undergo as a unit such as National Guard training and the like. The defendant also argues that if R.S. 38:23-1 be interpreted to authorize the grant of plaintiff's salary for a period for which he did not serve

the municipality, it would amount to an unconstitutional grant, and that by accepting leave without pay and not contesting it for nearly a year, he has waived any rights he may have had to the salary claimed.

The pertinent statute, R.S. 38:23-1, about which this controversy revolves, provides:

"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."

The crux of the problem is the interpretation of the words "field training." The evidence is uncontroverted that Major Lynch was a specialist in amphibious landing control and the purpose of his temporary active duty training was the attendance of an "Associate Basic Course" in refreshing and refining his military skills and the earning of points toward a promotion in the Army. The special regulations under which plaintiff was recalled to active duty provide: "Officers on active duty training will be assigned only for such duties as contribute materially and demonstrably to the individual's military development." It was held in Ex Parte Jochen , 257 Fed. 200, 205 (D.C. Tex. 1919), that the term "in the field" in the Articles of War, will be construed as used with the meaning which long usage of the War Department had given them, and as contained in its General Orders, Compilation 1881 to 1915, sec. 319, also Manual Quartermaster's Corps, United States Army, sec. 2193, defining "field service" to be service in mobilization, concentration, instruction, or maneuver camps, as well as service in campaign, simulated campaign, or on the march. It, therefore, undeniably appears that the purpose of plaintiff's temporary active duty was to engage in "field training" from the strict lexicographic view of the statute. As stated in MacPhail v.

Board of Chosen Freeholders of Hudson County , 6 N.J. Super. 613, 620 (Law Div. 1950):

"The canon of construction applicable here is that recently pronounced by the Supreme Court in Hackensack Water Co. v. Ruta , 3 N.J. 139, at 147 (1949), where it is said: 'We gather the sense of a law from its object and the nature of the subject matter and the whole of the context and the acts in pari materia. The parts of a statute are to be viewed in relation to the whole, and the motive which lead to the making of the law, and reconciled, if possible, to carry out ...


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