On appeal from an order of the Law Division of the Superior Court, certified by the Supreme Court on its own motion.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- None. The opinion of the court was delivered by Heher, J.
By this appeal, defendants challenge an order of the Law Division of the Superior Court denying their motion to dismiss the complaint for want of jurisdiction in that the pleaded cause of action in reality constitutes a suit against the State of New Jersey, brought without its consent.
The motion was made pursuant to Rule 3:12-2; and the appeal was taken to the Appellate Division of the Superior Court under Rule 4:2-2(a) (3), allowing appeals from orders or judgments, whether interlocutory or not, affirming jurisdiction of the person or the subject matter, and later certified by this court on its own motion.
This is the substance of the complaint: Plaintiff was appointed chief clerk in the office of the Clerk in Chancery, effective January 1, 1945, at an annual salary of $5,500. The appointment was made pursuant to R.S. 2:2-20. He performed the duties of the position until June 30, 1947, when he was suspended by the Clerk in Chancery without the benefit of salary. The suspension continued until December 5 ensuing, when the Clerk dismissed him from the position for what was considered good cause established at a hearing on charges of misconduct held conformably to R.S. 38:16-1, providing tenure during good behavior to war veterans in certain offices and positions. His salary, meanwhile, had been increased to $6,250. The dismissal was vacated by the Superior Court, in a proceeding in lieu of certiorari, for want of evidence to sustain the charges. Gallena v. Scott, 4 N.J. Super. 85 (App. Div. 1949). A petition for certification of the cause for appeal was denied by this court on November 21, 1949. 3 N.J. 376 (1950). See, also, 1 N.J. 430 (1949). An appeal to this court taken without leave was dismissed by order entered December 12, 1949.
Pursuant to the judgment, plaintiff was placed in a position in the office of the Clerk of the Superior Court, the successor to the Clerk in Chancery according to the changes in court structure wrought by the Constitution of 1947, at an annual salary of $7,500. The claim is for salary from July 1, 1948 to September 13, 1950, the date of his reinstatement. Salary has been paid to him from July 1, 1947 to June 30, 1948, in the sum of $6,500.
By L. 1950, c. 62, p. 108, the Legislature appropriated $1,406.25 for plaintiff's salary from July 1, 1948 to September 15, 1948, the effective date of the Judicial Article of the Constitution of 1947, and $1,679.30, to cover the cost of the litigation. Plaintiff has refused these monies, as insufficient. Defendants contend that the act provides the sum thus appropriated be accepted in payment of all claims
for salary; plaintiff insists that the appropriation was made to cover only the stated period. Of this, more hereafter. Demand is made for salary in full from the date of plaintiff's dismissal from his position to the date of his reinstatement, plus increments and cost of living bonus, aggregating $16,140.79. And the action is brought on the hypothesis that the defendants "are the persons charged by law" with the duty of payment.
The complaint prays judgment against "the defendants, jointly, individually, and in the alternative: (a) $16,140.79 and interest; (b) that defendants be directed to take such steps as are prerequisite, according to law, to procure on behalf of plaintiff the aforesaid sums which are jointly due and owing to him and to pay same to him."
This is a proceeding designed to control the action of the State and to subject it to liability within the principle of sovereign immunity from suit, and therefore untenable for want of the sovereign's consent to be sued. Strobel Steel Construction Co. v. State Highway Commission, 120 N.J.L. 298 (E. & A. 1938); Strobel Steel Construction Co. v. Sterner, 125 N.J.L. 622 (Sup. Ct. 1941), affirmed 128 N.J.L. 379 (E. & A. 1942), certiorari denied, Strobel Steel Construction Co. v. State Highway Commission of New Jersey, 317 U.S. 656, 63 S. Ct. 53, 87 L. Ed. 527 (1942); Abelson's Inc. v. New Jersey State Board of Optometrists, 5 N.J. 412 (1950).
The demand made by plaintiff has already been the subject of legislative consideration and action in the form of an appropriation apparently deemed quite adequate in the circumstances. Claim was made to the Legislature for salary and bonus from July 1, 1948 to June 30, 1950, in the sum of $14,070, and the cost of the litigation amounting to $1,679.30. The legislative committee on appropriations recommended to the Legislature that "payment of salary in the amount of $1,406.25 from July 1, 1948 to ...