For reversal -- Chief Justice Vanderbilt, and Justices Heher, Burling, Jacobs and Brennan. For affirmance -- Justices Oliphant and Wachenfeld. The opinion of the court was delivered by Jacobs, J. Wachenfeld, J. (dissenting). Justice Oliphant joins in this dissent.
In an opinion reported at 36 N.J. Super. 532 (1955), the Bergen County Court held that the plaintiff, formerly prosecutor of Bergen County, was entitled to recover $34,005.32 from the County of Bergen for salary as county prosecutor from December 1, 1950 to April 25, 1954, during which period he performed no public services because the Attorney-General had taken over the county prosecutor's duties pursuant to R.S. 52:17 A -5. The County appealed to the Appellate Division and we certified under R.R. 1:10-1(a).
On April 25, 1949 the plaintiff was appointed prosecutor of Bergen County for a period of five years. His salary was fixed by the board of chosen freeholders of the county at the sum of $10,000 per annum. He performed his duties as prosecutor until December 1, 1950. On that day the board adopted a resolution which set forth that: Whereas the Attorney-General had on October 20, 1950 assumed jurisdiction in Bergen County over the investigation of gambling activities; and whereas the investigation had assumed major proportions and it appeared that it would be wise for the State to assume the full responsibility for the operation of the office of prosecutor in Bergen County; therefore be it resolved that the Attorney-General be requested "to assume immediately the full responsibility for the prosecution of all criminal business in this County." On the same day, an Assistant Attorney-General took possession of the prosecutor's office and thereafter all of the criminal business of the county was conducted by him to the prosecutor's exclusion. The plaintiff does not now, nor has he at any earlier stage, questioned the constitutional or statutory propriety of the resolution of the board of chosen freeholders or the action of the Attorney-General pursuant thereto. We assume that the board's resolution and the Attorney-General's action were properly grounded and motivated and were compelled by the public interest; the plaintiff has made no showing or suggestion to the contrary, and would not, in any event, be permitted at this late date to attack them collaterally. Cf.
Keegle v. Hudson County, 99 N.J.L. 26 (Sup. Ct. 1923), affirmed 102 N.J.L. 219 (E. & A. 1925). It is conceded that the plaintiff performed no services whatever as county prosecutor from December 1, 1950 until his five-year term expired on April 25, 1954.
On April 21, 1955 the plaintiff filed his complaint in the County Court seeking judgment against the defendant County of Bergen for salary as prosecutor from December 1, 1950 to April 25, 1954. The defendant filed its answer denying liability and setting forth various separate defenses. On cross-motions for summary judgment the County Court denied the defendant's motion, granted the plaintiff's motion, and entered judgment accordingly. In its brief and appendix on appeal the defendant has referred to matters which the plaintiff describes as immaterial and scandalous and he has moved to suppress them; we have disregarded the matters which the plaintiff considers objectionable and there is no need to deal further with his motion.
Our recent opinion in De Marco v. Board of Chosen Freeholders of County of Bergen, 21 N.J. 136 (1956), contains a full discussion of the general principles which are controlling here. De Marco, a Bergen County detective, had been suspended pending trial on an indictment which was ultimately dismissed. After reinstatement he sought to recover salary for the period of his suspension but his claim was rejected in the Law Division. In affirming, we pointed out that the well-settled common-law principle in New Jersey is that a public officer's right to compensation grows out of the rendition of the services of his office (Mayor, etc., of City of Hoboken v. Gear, 27 N.J.L. 265, 279 (Sup. Ct. 1859); Stuhr v. Curran, 44 N.J.L. 181, 191 (E. & A. 1882)); that the emoluments of a public office are bestowed on the person "who performs the services and not upon one who has failed to perform the services, except as under statutory legislation it is otherwise provided" (Hillel v. Borough of Edgewater, 106 N.J.L. 481, 483 (E. & A. 1930)); that statutes which are advanced as changing the common-law principle are to be strictly construed
(Hart v. Borough of Hawthorne, 120 N.J.L. 27, 30 (Sup. Ct. 1938), affirmed 121 N.J.L. 135 (E. & A. 1938); Strohmeyer v. Borough of Little Ferry, 136 N.J.L. 485 (E. & A. 1848)); and that none of the legislative enactments invoked by him (R.S. 40:46-34, N.J.S. 2 A:135-9, N.J.S. 2 A:157-4, R.S. 11:4-3.6) was sufficiently comprehensive to support his claim for recovery of salary for the period during which he performed no public services because he was under suspension.
The plaintiff contends that the De Marco case is inapplicable because it dealt with a non-constitutional office whereas the plaintiff held a constitutional office; however, our common-law cases and the policy which underlay them gave no recognition to any such distinction. The Constitution of 1947 does provide that county prosecutors shall be appointed by the Governor with the advice and consent of the Senate for terms of five years (Art. VII, Sec. II, par. 1) but it does not set forth their duties or compensation nor does it contain any provision against reduction of compensation during their terms of office. Cf. Art. VI, Sec. VI, par. 6; State v. Longo, 136 N.J.L. 589, 592 (E. & A. 1947). We assume, as the plaintiff urges, that his office could be terminated only by impeachment pursuant to Art. VII, Sec. III, par. 1 (but cf. N.J.S. 2 A:135-9) and that any steps aimed at circumventing the prescribed method would be stricken by the courts. In the instant matter, however, the plaintiff's office was not terminated by the Attorney-General's action and no steps aimed at circumventing the Constitution were ever taken. Cf. Appeal of Margiotti, 365 Pa. 330, 75 A. 2 d 465 (1950). We find nothing in the terms of the Constitution or in its history which suggests any deliberate purpose to abrogate the long line of New Jersey decisions which upholds the doctrine that, apart from legislation, a public officer who does not actually function as such and who performs no public services may not prevail in an action for compensation. The plaintiff's notion that the earlier cases dealt with "suspensions from positions or employments" as distinguished from suspensions from "offices" is entirely
groundless; indeed in Ross v. Board of Chosen Freeholders of Hudson, 90 N.J.L. 522 (E. & A. 1917), the court expressed the view that they dealt solely with public offices and had no relation to positions and employments. See Glasser, A New Jersey Municipal Law Mystery: What is a Public Office, 6 Rutgers L. Rev. 503, 521 (1952).
At the oral argument of the plaintiff's appeal his counsel conceded that his claim for salary could not now be supported on common-law principles and that it must rest on legislative enactments. He relied on N.J.S.A. 52:17 A -5 although the County Court had placed additional reliance on other statutes, namely, R.S. 2:182-10; N.J.S. 2 A:158-10; R.S. 2:182-11; N.J.S. 2 A:158-13; R.S. 2:182-12; N.J.S. 2 A:158-14. We shall review these enactments individually, in the light of the principles embodied in the De Marco case, supra.
N.J.S. 2 A:158-10 (formerly R.S. 2:182-10) provides that in counties in which there are two or more judges of the County Court, the prosecutors shall receive annual salaries of not less than $7,500 nor more than $10,000 as fixed by resolution of the board of chosen freeholders; and N.J.S. 2 A:158-13 (formerly R.S. 2:182-11) provides that the salaries of prosecutors shall be paid at the same time and in the same manner as other county salaries are paid. These statutes do not bear on the question of whether a county is obligated to pay a prosecutor's salary when it was not actually earned because the prosecutor had been displaced by the Attorney-General. It may be assumed that in the common-law cases which denied recovery to public ...