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Salz v. State House Commission

Decided: March 21, 1955.


On appeal from the Appellate Division of the Superior Court, whose opinion is reported in 32 N.J. Super. 230.

For affirmance -- Justices Heher, Burling, Jacobs and Brennan. For reversal -- Chief Justice Vanderbilt, and Justices Oliphant and Wachenfeld. The opinion of the court was delivered by Heher, J.


[18 NJ Page 109] We inquire here as to the meaning of L. 1941, c. 119, as amended by L. 1942, c. 327, N.J.S.A. 38:23-4, for upon that the issue turns. It is thereby provided that a public servant of any of the enumerated classes who shall enter the active military or naval service of the United States or New Jersey, "in time of war or an emergency, or for or during any period of training, or pursuant to or in connection with the operation of any system of selective service," shall be granted "leave of absence for the period of such service and for a further period of three months after receiving his discharge from such service"; or if he shall be "incapacitated by wound or sickness at the time of his discharge from such service," the leave of absence shall be extended "until three months after his recovery from such wound or sickness, or until the expiration of two years from the date of his discharge from such service, whichever shall first occur." And during the "period of such leave of absence" such person shall be "entitled to all the rights, privileges and benefits that he would have had or acquired if he had actually served in such office, position or employment during such period of leave of absence except, unless otherwise provided by law, the right to compensation." The next succeeding sentence is this, signifying a distinction between the terms "compensation" and "pay": "Such leave of absence may be granted with or without pay as provided by law." And then it is provided that such person shall be "entitled to resume the office, position or employment held by him at the time of his entrance into such service, provided

he shall apply therefor before the expiration of his said leave of absence"; and also that "No person who, after entry into such service, shall have been separated from any such service by a dishonorable discharge shall be entitled to any of the rights, privileges or benefits herein conferred."

Colonel Salz, born October 26, 1894, was not eligible for retirement on pension from the State Police when he entered military service on January 6, 1942, after he had been "granted a leave of absence, without pay, for the duration of the National Emergency, effective January 6, 1942," by Special State Police Order No. 160, issued by the Superintendent. He had been in the active service of the State Police since July 1, 1922. The statute, L. 1925, c. 188, as amended by L. 1937, c. 114, R.S. 1937, 53:5-2, then provided for optional retirement when a member had served in the department for 20 years and had attained the age of 50 years. He had made a prior application, October 3, 1946, for retirement on pension under the earlier act but, according to the Commission's minutes, it was denied December 10, 1946 on the ground of ineligibility "for retirement pension until he had been discharged from the Army."

After his induction into the Army, Colonel Salz continued his contributions to the State Police Retirement and Benevolent Fund, R.S. 53:5-1, until the effective date of L. 1942, c. 252, N.J.S.A. 38:23-6, relieving a public servant who enters military service from that responsibility and placing the burden on the agency or subdivision of government from whose service he was absent pro tempore, according to the "amount of compensation received by such person prior to his entry into such service." Thereafter, the State made the contributions that would otherwise have been chargeable to Salz; and by a later Special Order No. 229, dated May 3, 1946, the Superintendent of the State Police directed his promotion to the grade of lieutenant, effective May 16, 1946. And now, even though still in military service, Salz invokes L. 1949, c. 251, N.J.S.A. 53:5-2.1, effective July 4, 1949, providing for mandatory retirement when a member has served in the police department for 25 years and has reached

the age of 55 years. While the age prerequisite is met, the applicant has not had the required period of service unless the deficiency of time in actual service is otherwise supplied by statute.

But in N.J.S.A. 38:23-4 there is an express exclusion of the "right to compensation" from the reservation of "rights, privileges and benefits" the civil servant entering military service would have had or acquired had he remained in the State service.

It is but reasonable to suppose that the terms "compensation" and "pay as provided by law" have different connotations; the use in successive sentences treating of the same subject matter of these terms of variant implication and import cannot be dismissed as utterly without significance in the manifestation of the legislative design. Words are to be given their common acceptance and usage; but the intent of the lawgiver is to be deduced from the occasion and necessity of the law and the remedy in view, bearing in mind the subordinate rule in aid of intention that particular words may be enlarged or restricted in meaning by their associates and the evident spirit of the whole expression. We look for the sense and reason of the law. The animating principle of the correlated symbols of expression prevails over the strict letter. Caputo v. Best Foods, Inc., 17 N.J. 259 (1955).

"Compensation" is a generic term comprehending that which constitutes, or is regarded as, an equivalent or recompense; that which makes good the lack of variation of something else; that which compensates for loss or privation; amends; remuneration; recompense. Webster's New International Dictionary, 2 d ed. And while "pay" also has the meaning of "compensation," here the term is plainly used in the more limited sense of an equivalent or return for services performed; salary or wages for work or service, reverting to Webster. And the leave granted was "without pay."

A public pension, while not contractual in nature, is akin to wages and salaries in that it ...

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