On appeal from Superior Court, Appellate Division, whose opinion is reported in 14 N.J. Super. 329.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Burling and Ackerson. For affirmance -- Justice Wachenfeld. The opinion of the court was delivered by Burling, J.
[8 NJ Page 282] The defendant, Borough of Edgewater, appeals from a judgment of the Superior Court, Appellate Division, entered June 25, 1951, reversing a judgment of dismissal entered in its favor and against the plaintiff, Sylvester J. Lynch, in the Bergen County District Court in
a civil action for salary brought under R.S. 38:23-1. The defendant appealed on constitutional grounds. Rule 1:2-1(a).
The facts upon which this action is predicated are not complex. The plaintiff, engaged in public employment as a patrolman of the police department of the defendant, is and has been for many years a member of the Organized Reserve of the Army of the United States, in more recent years holding the rank of major. In 1948 he was attached to the 192nd Organized Reserve Composite Group (of the Army of the United States) at Kearney and Newark, New Jersey. In July, 1948, the plaintiff voluntarily applied for active duty training with the United States Army, and upon acceptance of that application he was ordered to duty to attend the Associate Basic Course at the Transportation School, Fort Eustis, Virginia, for a period of 90 days effective September 17, 1948, to December 15, 1948. On September 16, 1948, plaintiff applied in writing to the mayor and council of the defendant for leave of absence from his duties as patrolman for a period of 90 days beginning September 16, 1948, "for the purpose of doing active duty in connection with the United States Army." This application contained no request for pay, and was granted without pay at a meeting of the mayor and council held on October 5, 1948. Plaintiff's orders to active duty were individual and authorized his attendance at a service school in his individual capacity. Although his application was processed through the unit instructor of his organized reserve group, there is no indication in the record that the group was ordered to training duty as a collective unit. The plaintiff testified that the course he attended was an officers' training course attended by other officers from all over the United States, and admitted that as far as he was concerned it was individual and specialized training, a basic training course of general interest to himself; he testified that he was "schooling myself to Staff Level." The plaintiff without objection testified as to the text of Army Special Regulations 140-220- C3, relative to
Organized Reserve Corps, Short Tours of Active Duty Training, which classifies active duty training in several categories including as one class "field exercises" and another class as "attendance as students at service schools," and testified (also without objection) that the Army does not use the specific term "field training." He admitted however that he had applied for active duty in the Army and for leave from his duties as patrolman of the defendant, to attend the Fort Eustis Transportation School as a student. He further testified (again without objection) that the Army designation "Active Duty Training" in general includes "all phases of military activity, such as field training, assembly with troops, lectures, conferences -- well, everything that would enable you to be effective when your country is at arms."
After his return from his tour of active duty as a student at the transportation school at Fort Eustis, the plaintiff demanded of the defendant payment of his salary as a patrolman for the period covered by his leave of absence. His demand was refused and he instituted this civil action against the defendant in the Bergen County District Court to recover that pay. Judgment for the defendant was entered on the ground that as a matter of law plaintiff was not engaged in field training under R.S. 38:23-1, upon which statute he had based his claim for recovery. Upon appeal to the Superior Court, Appellate Division, the judgment was reversed and a new trial was ordered. The defendant thereupon filed this appeal, contending as its basis for appeal that the statute as construed by the Superior Court, Appellate Division, was unconstitutional.
The statute thus brought before us is R.S. 38:23-1, which reads as follows:
"38:23-1. Leave of absence for field training in reserve corps of United States.
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 ...