On appeal from Superior Court, Appellate Division, whose opinion is reported in 16 N.J. Super. 448.
For reversal -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld and Burling. For affirmance -- Justices Heher and Brennan. The opinion of the court was delivered by Burling, J. William J. Brennan, J. (dissenting). Heher, J., concurs in this dissent.
[10 NJ Page 381] The plaintiffs in this case instituted against the defendant Board of Chosen Freeholders of the County of Hudson (hereinafter referred to as Hudson County) in
the Hudson County Court an action to recover unpaid municipal employees' salaries. At the conclusion of testimony at the trial the defendant moved for judgment on the ground of waiver as a matter of law. The trial court granted the motion and entered judgment for the defendant. The plaintiffs perfected an appeal to the Superior Court, Appellate Division, which court reversed the judgment. Long v. Bd. of Chosen Freeholders of the County of Hudson, 16 N.J. Super. 448 (App. Div. 1951). Hudson County thereupon petitioned this court for certification, which was allowed. 9 N.J. 179 (1952).
The facts are not in dispute. The claims involved are for salary alleged to be due under the provisions of L. 1938, c. 54 (N.J.S.A. 40:21-80, now incorporated in N.J.S.A. 30:8-13.1) which became effective March 30, 1938. This statute provided as follows:
"BE IT ENACTED BY THE SENATE AND GENERAL ASSEMBLY OF THE STATE OF NEW JERSEY:
1. In all counties of the first class in this State the guards, keepers and industrial officers employed in the jails, houses of detention and penitentiaries shall receive the minimum compensation of two thousand dollars ($2000.00) per annum and the maximum compensation of three thousand dollars ($3,000.00) per annum. The salaries of such employees hereafter appointed shall commence at said minimum and shall be increased two hundred dollars ($200.00) per annum for each year of service thereafter, not to exceed the maximum herein established. All such employees now in service shall on July first following the passage of this act be entitled to receive an increase of two hundred dollars ($200.00) over his or her present salary and on July first in each year thereafter shall be entitled to a further increase of two hundred dollars ($200.00) not to exceed the maximum herein established.
2. All acts or parts of acts inconsistent herewith be and the same are hereby repealed and this act shall take effect immediately."
On the effective date of the foregoing statute the plaintiffs' intestates, Daniel S. Long and Thomas Francis Lane, were in the employ of Hudson County as jail guards at the Hudson County jail, each at an annual salary of $2200. These salaries remained unchanged until June 1, 1944, at which time they were increased to $2600 per annum. A further increase,
to the statutory maximum of $3000 per annum, became effective on January 1, 1945. In the interim, i.e., between March 30, 1938 and June, 1944 no provision for the payment of the statutory salary increments was made by Hudson County. Neither Long nor Lane made any demand upon the defendant for the statutory salary increases, but on the contrary signed payrolls and accepted and endorsed salary checks based on the rate of $2200 per annum.
Prior to June, 1944, an attorney was retained to represent all the jail guards of Hudson County with regard to their respective demands for the statutory salary increments. Acting upon this attorney's advice, Long and Lane, the guards here in question, in concert with other county jail guards, (one testified he signed only the receipt and not the waiver), on June 1, 1944 signed an instrument which contained the following pertinent language:
"We, the undersigned, guards, keepers and industrial employees or officers employed in the jail, house of detention and penitentiary of the County of Hudson claiming to be entitled to salary according to the schedules provided in R.S. 40:21-80 (Laws of 1938 Chapter 54, page 150, as amended, Laws of 1940, Chapter 134, page 292, in order to reach the maximum salaries thereby provided, having agreed that our present rates of salary shall be increased as of June 1, 1944, to $2600.00 and shall be further increased on the 1st day of January 1945, to $3000.00 in consideration of the payment of wages thus increased, and in consideration of our respective signatures hereto, do hereby expressly waive any and all claims and demands ...