For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Burling, Jacobs and Brennan. For reversal -- Justice Wachenfeld. The opinion of the court was delivered by Jacobs, J. Heher, J., concurring in result.
In an opinion reported at 36 N.J. Super. 382 (Law Div. 1955), Judge Waesche held that the plaintiff, a Bergen County detective, was not entitled to recover salary from October 9, 1951 to December 8, 1954, during which period he was under suspension and performed no services whatever for the county. The plaintiff appealed to the Appellate Division and we certified under R.R. 1:10-1(a).
In 1947 the prosecutor of Bergen County appointed the plaintiff as a county detective. The plaintiff's duties were "to assist the prosecutor in the detection, apprehension, arrest and conviction of offenders against the law"; he was in the classified service of the civil service and possessed the powers, rights and obligations of police officers, constables and special deputy sheriffs in criminal matters. N.J.S. 2 A:157-2. On October 9, 1951 the grand jury of Bergen County returned an indictment against the plaintiff charging him with willfully neglecting to perform his duties as a county detective. On the same day the deputy attorney-general who was then in charge of the Bergen County prosecutor's office suspended the plaintiff. No services whatever were performed by the plaintiff for the county during his suspension. The propriety of the deputy attorney-general's action seems beyond question for it would have been decidedly against the public interest for the plaintiff to have served as a law enforcement officer while he was under indictment. Cf. Russo v. Walsh, 18 N.J. 205, 212 (1955). However, the indictment against the plaintiff was never brought on for trial and on December 7, 1954 it was dismissed on the State's motion. On the following day the prosecutor of Bergen County directed that the plaintiff report forthwith
for active duty as a county detective and fixed his salary thereafter at the rate of $5,000 per annum. On February 14, 1955 the plaintiff filed his complaint against the defendants, claiming that there was due him the sum of $13,661.40 representing unpaid salary for the period of his suspension from October 9, 1951 to December 8, 1954. In due course cross-motions for summary judgments were filed; the court granted the motion by the defendants and the present appeal is from the ensuing judgment.
We are not here disposed to question the pertinent common-law principles as enunciated in numerous New Jersey decisions covering a span of almost a century. See Mayor, etc., of City of Hoboken v. Gear, 27 N.J.L. 265 (Sup. Ct. 1859); Stuhr v. Curran, 44 N.J.L. 181 (E. & A. 1882); Erwin v. City of Jersey City, 60 N.J.L. 141 (E. & A. 1897); Fitzpatrick v. City of Passaic, 105 N.J.L. 103 (Sup. Ct. 1928), affirmed 105 N.J.L. 632 (E. & A. 1929); Hillel v. Borough of Edgewater, 106 N.J.L. 481 (E. & A. 1930); Sganga v. Teaneck Township, 130 N.J.L. 218 (Sup. Ct. 1943); Strohmeyer v. Borough of Little Ferry, 136 N.J.L. 485 (E. & A. 1948); Pollak v. Borough of Wallington, 22 N.J. Misc. 239 (D. Ct. 1944). Cf. Devlin v. City of Trenton, 126 N.J.L. 563 (E. & A. 1941); Hart v. Borough of Hawthorne, 120 N.J.L. 27 (Sup. Ct. 1938), affirmed 121 N.J.L. 135 (E. & A. 1938). In the leading case of Mayor, etc., of City of Hoboken v. Gear, supra, a policeman was appointed for two years but actually served for less than a year because the police force was disbanded by resolution of the city council. In rejecting his salary claim for the remainder of the two-year period during which he performed no services, Chief Justice Green expressed broad principles which have become firmly imbedded in the common law of our State. He pointed out that the test of whether the appointee held a public office was whether he was "concerned in the administration of public duties"; that his appointment to public office was "neither a contract between the public and the officer that the service shall continue during the designated term, nor that the salary shall not be changed
during the term of office"; and that his right to compensation grew " out of the rendition of the services and not out of any contract between the government and the officer that the services shall be rendered by him."
In Stuhr v. Curran, supra, the court held that a de jure officer who had performed no services was not entitled to recover from a de facto officer who had actually performed the required services; in the course of his opinion Justice Van Syckel noted that in England public offices were incorporeal hereditaments and the subjects of vested or private interests, whereas in the United States they were not held by grant or contract nor did individuals have any property or vested rights in them. He stressed that "no countenance should be given to the notion that public offices are created for the benefit of office-holders" and that the "right to emolument must be regarded as having no legal existence except as arising out of the rendition of services for which they are compensatory."
In Hillel v. Borough of Edgewater, supra, several municipal police officers were suspended after convictions for violations of the Federal Prohibition laws. Thereafter, their convictions were reversed on appeal and they were reinstated as police officers. They sued to recover salaries for the period during which they had been suspended but the Court of Errors and Appeals unanimously rejected their claims. Justice Lloyd's opinion for the court embraced fully the views expressed in Mayor, etc., of City of Hoboken v. Gear, supra and Stuhr v. Curran, supra. He pointed out that the validity of the suspensions had never been attacked directly and could not be attacked in collateral proceedings for salaries; he reaffirmed our common-law doctrine that the "right of recovery by a public officer is dependent on the performance of the duties of the office"; and he restated, as settled law in our State, the rule that the "emoluments of the office are bestowed on him who performs the services and not upon one who has failed to perform the services, except as under statutory legislation it is otherwise provided."
In Sganga v. Teaneck Township, supra, the court cited several of the aforementioned cases (including Stuhr v. Curran and Hillel v. Borough of Edgewater, supra) as common-law authorities for the broad doctrine that a public officer could not recover salary for a period during which he had performed no services; in response to the contention that the common-law cases should not be invoked where the public officer was prevented from working by action of his superior and through no fault of his own, the former Supreme Court remarked briefly that the "cases do not turn upon the question of why the services were not performed." In Strohmeyer v. Borough of Little Ferry, supra, the Court of Errors and Appeals, in rejecting a police officer's claim for salary during a period of suspension stated flatly: "Apart from statute that there is no right of recovery for a salary not earned seems clear." To the extent that the former Supreme Court's opinion in State ex rel. Jardot v. City of Rahway, 2 N.J. Misc. 742 (Sup. Ct. 1924) on rehearing 3 N.J. Misc. 201 (Sup. Ct. 1925) embodies notions to the contrary it must be disregarded as being inconsistent with the controlling decisions of the court of last resort.
The Strohmeyer case, supra, involved not only the basic common-law principle but also the construction of R.S. 40:46-34 which modified it under certain circumstances. Cf. Devlin v. City of Trenton, supra, 126 N.J.L., at page 565. That statute then provided that "Whenever a municipal officer or employee, including any policeman or fireman, has been or shall be illegally dismissed from his office or employment, and such dismissal has been or shall be judicially declared illegal, he shall be entitled to recover the salary of his office or employment for the period covered by the illegal dismissal." Justice Bodine, in an opinion delivered for the entire court, construed the statute strictly and as inapplicable to a case where a municipal police officer had ...