Price, Schettino and Hall. The opinion of the court was delivered by Schettino, J.A.D.
[52 NJSuper Page 527] Appeal is from a judgment in favor of defendant in an action brought to recover back
salary allegedly due plaintiff for a period of time covered by his suspension from defendant's police force.
Plaintiff, a policeman of defendant municipality, was twice indicted on December 16, 1954 for sex offenses involving children. On January 27, 1955 plaintiff was suspended by the chief of police from active duty pending the outcome of the indictments. The suspension was ratified by the governing body of defendant city. Plaintiff was convicted and sentenced but the convictions were reversed by the Appellate Division. State v. Hintenberger , 41 N.J. Super. 597 (App. Div. 1956). He was indicted for an additional offense, tried on all three indictments and acquitted on January 29, 1957.
Plaintiff applied for reinstatement on February 7, 1957 and was reinstated to duty on March 20, 1957. On the same day he was suspended from active duty by reason of indictments for false swearing and obstruction of justice arising out of the aforementioned two trials. The actions of reinstatement and second suspension were ratified by the governing body. There were never any written charges filed by the municipality, nor was there any departmental trial. It is stipulated that plaintiff during that period was ready and willing to go back to duty but defendant prevented him from doing so by its suspension. Although not part of the stipulation of facts, the trial court noted and made use of the County Court records showing that plaintiff was subsequently convicted of the false swearing and obstruction of justice charges. It was conceded that plaintiff never sought return to the police department after that conviction.
On March 26, 1957 plaintiff made application pursuant to N.J.S.A. 40:46-34 to recover back salary in the total amount of $9,416 representing a period from the day of original suspension to the date of reinstatement.
Plaintiff strongly urges the application of N.J.S.A. 40:47-6 and N.J.S.A. 40:47-8. These provisions refer to a suspension during which departmental charges are pending and prior to a departmental hearing. D'Ippolito v. Maguire , 33 N.J. Super. 477 (App. Div. 1955). These
statutes are not applicable since admittedly departmental charges were never brought against plaintiff.
We feel that the statute, if any statute is applicable, is N.J.S.A. 40:46-34, which reads in part as follows:
"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; * * *."
Plaintiff contends that the action of the governing body in reinstating him to his position, even though it was for only part of a day, was the judicial declaration of illegality required by the statute. Defendant counters by arguing that the original suspension was not illegal and could consequently never be declared so to be. It alternatively urges that, even if it could be, it never in fact was "judicially declared" illegal. Plaintiff additionally argues that the trial court erred in considering the indictment and record of conviction of plaintiff for false swearing and obstruction of justice. (We are of the opinion that it had every right to do so. Taylor v. N.J. Highway Authority , 22 N.J. 454, 459 (1956)).
Was the plaintiff's suspension "judicially declared illegal" within the meaning of N.J.S.A. 40:46-34? Plaintiff concedes that the municipality was clearly justified in suspending a patrolman under indictment. But, plaintiff contends that, although the action was clearly justified and proper at the time it was taken, it was later found to ...