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County of Bergen v. McConnell

Decided: December 17, 1959.

COUNTY OF BERGEN, A BODY POLITIC AND CORPORATE OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
EDWARD B. MCCONNELL, ADMINISTRATIVE DIRECTOR OF THE COURTS; ABRAM M. VERMEULEN, DIRECTOR, DIVISION OF BUDGET AND ACCOUNTING AND AARON K. NEELD, STATE TREASURER, DEFENDANTS-RESPONDENTS



Goldmann, Conford and Haneman. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

Plaintiff brought an action in lieu of prerogative writs seeking recovery of 40% of the pension it had paid former County Court Judge Del Mar pursuant to the Veterans' Pension Act (R.S. 43:4-1 to 5, as amended N.J.S.A.), under which he retired, effective April 1, 1954. On cross-motions for summary judgment the Law Division judge ordered defendants to reimburse plaintiff 40% of all pension payments made for the period beginning January 1, 1958 and continuing thereafter. It denied plaintiff's claim for a 40% reimbursement of payments made prior to that date. Plaintiff appeals from the latter part of the judgment, and defendants from the former.

Judge Del Mar served as Bergen County Common Pleas judge and later as County Court judge, from June 16, 1932 until April 1, 1954, when he was retired under N.J.S.A. 43:4-1 on his application, after formal resolution adopted by the freeholder board. His salary at the time was $16,000 a year and he has been paid a pension at the rate of $8,000 annually. In 1954 plaintiff made a demand upon the Administrative

Director of the Courts, the State Director of the Division of Budget and Accounting, and the State Treasurer for a 40% reimbursement of pension payments made from April 1 to June 30, 1954. The demand was rejected on the basis of an opinion by the Attorney General to the effect that pension payments could not be regarded as salary and that the county was therefore not entitled to reimbursement under N.J.S. 2 A:3-19, quoted below.

Plaintiff continued to pay the pension without further demand for reimbursement until April 30, 1958, when the Treasurer of Bergen County submitted an invoice to defendant Administrative Director of the Courts for a 40% refund of all pension payments down to March 31, 1958. This claim, too, was rejected in reliance upon the Attorney General's opinion of 1954.

The present action was instituted on July 30, 1958. After answer filed, the parties entered into a stipulation of facts, summarized above, in which defendants reserved all defenses. The counter-motions for summary judgment then followed. The trial court granted judgment to plaintiff covering payments from January 1, 1958 on the ground that since the State had reimbursed Bergen County for 40% of Judge Del Mar's salary during his active service, pursuant to N.J.S. 2 A:3-19, it was only logical that the State bear 40% of his pension payments. The trial judge noted that in Watt v. Mayor, etc., of Franklin , 21 N.J. 274, 279 (1956), the late Chief Justice Vanderbilt had spoken of pensions to public officers as "some form of delayed wages or salary to compensate the employee during his declining years when he is apt to be less productive for his long and faithful service." Accordingly, he construed the provision in N.J.S. 2 A:3-19 that the State reimburse for 40% of "salaries" to County Court judges, as including pensions within the meaning of the word "salaries." He further ruled that R.R. 4:88-15 and laches barred plaintiff from recovering 40% of pension payments made before January 1, 1958.

The problem presented is one of construing the two statutes here involved -- the Veterans' Pension Act (R.S. 43:4-1 to 5, as amended) and N.J.S. 2 A:3-19 -- to ascertain the legislative intent. R.S. 43:4-3 provides in part:

"A person so retired shall be entitled, for and during his natural life, to receive by way of pension, one-half of the compensation then being received by him for his service, which shall be paid in the same way and in the same installments as his compensation has been payable. * * *"

N.J.S. 2 A:3-19 directs that

"The salaries of the judges of the several county courts shall be payable from county funds, by the treasurers of the respective counties, in equal semimonthly installments; provided, however, that 40 per cent of the salaries, which may be paid to June thirtieth in any year to the judges of the county court in any county by reason of the provisions of this article, shall be refunded to said county by the state treasurer on warrant of the director of the division of budget and accounting in the department of the treasury on vouchers certified or approved by the county treasurer and the administrative director of the courts."

The main basis of plaintiff's claim to reimbursement is the language found in R.S. 43:4-3, calling for a pension in the amount of one-half the compensation then being received by the veteran, "which shall be paid in the same way and in the same installments as his compensation has been payable." Since 40% of the judge's salary while he was in active service was reimbursed by the State, the argument is that pension payments must likewise be reimbursed to the extent of 40%. But this is to overlook the general purport of the statute. In enacting the Veterans' Pension Act the Legislature was considering all veterans, and not any particular class of employees or officers like county judges. What it obviously had in mind was the situation which ordinarily exists, where a public ...


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