Schneider, J.c.c. (specially assigned).
Plaintiff sues to recover compensation due him as a policeman during his illegal suspension from active duty. The facts are stipulated.
The plaintiff was appointed as a patrolman of the City of Garfield, Bergen County, N.J., on April 16, 1947 and served as such to January 27, 1955. The plaintiff was indicted by the Bergen County grand jury on December 16, 1954 for a violation of N.J.S. 2 A:96-3 and 2 A:115-1. Both of these are so-called "sex" offenses involving children.
On January 27, 1955 the Chief of Police of Garfield notified the plaintiff of suspension from active duty pending the outcome of the indictments, which action was ratified by the governing body of the defendant.
On February 7, 1956 the plaintiff was convicted of a violation of both indictments and he was sentenced on March 2, 1956. On October 5, 1956 the Appellate Division of the Superior Court reversed the conviction under both indictments, State v. Hintenberger , 41 N.J. Super. 597. On December 28, 1956 the plaintiff was again indicted for a further violation of N.J.S. 2 A:96-3. He was retried on the two old indictments and the new one on January 29, 1957 and was acquitted of all charges.
On March 20, 1957 plaintiff was reinstated to duty and was immediately suspended from active duty by reason of new indictments for false swearing and obstruction of justice arising out of the previous trials, which action of reinstatement and suspension was ratified by the governing body of Garfield.
On March 26, 1957, pursuant to requirements of N.J.S.A. 40:46-34, plaintiff made application to recover salary for the period January 27, 1955 to March 30, 1957. It is stipulated that during the period of the first suspension the plaintiff has been ready and willing to perform his duties but was prevented from doing so by the suspension. There were no written charges in the municipality, nor was there any departmental trial. The parties agree that if there is to be a recovery, it will be in the amount of $9,416.
The stipulation of fact does not go beyond the above statement of facts, yet it is a matter of record that the second suspension at the same time of the momentary reinstatement, was for the crime of false swearing arising out of the testimony given in the trial resulting in the acquittal upon which this claim is based. It is also a matter of record that there was a trial, resulting in the conviction of the plaintiff in this case on four of six counts of the indictment and he was sentenced. He never returned to active duty nor was he ever reinstated.
N.J.S.A. 40:46-34 provides that
"Whenever a municipal officer or employee, including any policeman or fireman, has been or shall be illegally dismissed or suspended from his office or employment, and such dismissal or suspension 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 or suspension."
(The statute also provides for notice which is not in issue in this case.) The statute specifically covers this case by reason of the amendment in 1948 (c. 163, sec. 1 and c. 395, sec. 1) which included the suspension situation in the statute.
Counsel for defendant sets forth considerable law that the municipality had a legal right to suspend by reason of
the charges filed. This is not the issue in this case. There was a right to suspend and if the suspension was judicially declared to be legal, there could be no recovery in this case.
The defendant contends that the plaintiff is not entitled to recover salary for the period of suspension, where the suspension has not been judicially declared illegal. Yet on the stipulation of facts agreed to by defendant counsel, it shows an acquittal of charges for which suspension was originally created and a reinstatement to the force. The plaintiff sues only for this period of time and does not seek recovery for the period of the second suspension arising out of charges arising after most of the period of the first suspension. The defendant does not show facts linking the second suspension as part of the first suspension.
The defendant quotes De Marco v. Board of Freeholders of Bergen County , 21 N.J. 136 (1956), as law for the point that there can be no recovery where services have not been rendered. The De Marco case was decided on the basis that R.S. 40:46-34 does not apply to any but municipal officers. While the court did discuss the theory that there could be no recovery where no work was done, it was careful to point out that the social consideration of double compensation for work done rests with the Legislature rather than with the courts. The judicial function is one of statutory interpretation and application within constitutional limits.
A very similar case to ours was Strohmeyer v. Borough of Little Ferry , 6 N.J. Super. 282 (App. Div. 1950). In this case the officer was suspended after indictment by the grand jury. The charges were dismissed and the officer returned to duty. The court held that this was a judicial determination that the suspension was illegal and the officer was, by virtue of the statute, entitled to recover the salary for the period of suspension.
There is no question that if the plaintiff, after his acquittal, had been restored to active duty, as he was in this case, and had continued to serve, or had then or later resigned, that he would be ...