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Miele v. McGuire

January 11, 1960

DANIEL MIELE, JR., PLAINTIFF-RESPONDENT AND CROSS-APPELLANT,
v.
JOSEPH MCGUIRE, ET AL., DEFENDANTS-APPELLANTS AND CROSS-RESPONDENTS



For modification -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Schettino. Opposed -- None. The opinion of the court was delivered by Jacobs, J.

Jacobs

[31 NJ Page 341] The Law Division sustained the plaintiff's claim of tenure under the Veterans' Tenure Act (N.J.S.A. 38:16-1) and ordered his reinstatement but without any back pay. It rejected the defendants' contention that the Korean conflict was not a war within the meaning of the act and that the plaintiff, as a veteran of that conflict, was not entitled to the act's protection. The defendants appealed from the order of reinstatement, the plaintiff cross-appealed from the refusal to allow back pay, and we certified on our own motion. In support of their appeal the defendants' brief again raises the point that the Korean conflict was not a war within the meaning of the Veterans' Tenure Act but on that issue we are in complete agreement with the Law Division's determination and the supporting reasons which are expressed in its comprehensive opinion reported in Miele v. McGuire, 53 N.J. Super. 506 (Law Div. 1959). The only additional point raised in the defendants' brief

in support of their appeal is an attack on the Veterans' Tenure Act as violative of the terms of Article IV, Sec. 7, par. 7 of the New Jersey Constitution which provides that "No general law shall embrace any provision of a private, special or local character." That point was not discussed in the opinion of the Law Division presumably because it was not raised there. See City of Newark v. Pulverman, 12 N.J. 105, 108 (1953). On his cross-appeal the main point raised by the plaintiff is that since he held an employment or position rather than an office (see De Marco v. Board of Chosen Freeholders of Bergen County, 21 N.J. 136 (1956); Winne v. Bergen County, 21 N.J. 311 (1956)) he was, upon reinstatement, entitled to back pay under Ross v. Board of Chosen Freeholders of Hudson County, 90 N.J.L. 522 (E. & A. 1917). Here again the precise point was not discussed in the opinion of the Law Division because it was not raised there although the plaintiff did urge that he was entitled to back pay under N.J.S.A. 40:46-34 and N.J.S.A. 38:23 A -3. See Miele v. McGuire, supra, 53 N.J. Super. 506, at pages 515-517.

The Veterans' Tenure Act states that no veteran now holding or hereafter appointed to any employment, position or office, whose term of employment, position or office "is not now fixed by law" shall be dismissed except for good cause. The defendants' contention is that whereas the phrase "not fixed by law" would have been proper, the phrase "not now fixed by law" was improper because it excludes all veterans holding positions "created after" the passage of the act as well as all veterans holding, at the passage of the act, fixed term positions which were thereafter "changed so as to be not fixed by law." The defendants urge that this type of closed classification constitutes special legislation which is violative of Article IV, Sec. 7, par. 7 of the Constitution. See Pierson v. O'Connor, 54 N.J.L. 36 (Sup. Ct. 1891); Bumsted v. Henry, 74 N.J.L. 162 (Sup. Ct. 1906), affirmed 74 N.J.L. 790 (E. & A. 1907); but cf. Addiss v. Logan Corporation, 23 N.J. 142, 147 (1957)

commented upon in Heckel, "Constitutional Law," 13 Rutgers L. Rev. 17, 30 (1958); In re Freygang, 46 N.J. Super. 14, 24 (App. Div. 1957), affirmed 25 N.J. 357 (1957).

In Chapter 104 of the Laws of 1888 the Legislature provided for tenure for Civil War veterans holding city or county positions for terms "not now fixed by law." In Lewis v. Jersey City, 51 N.J.L. 240 (Sup. Ct. 1889) the court held that this act applied to the holders of offices and positions but not to the holders of employments. See Glasser, "A New Jersey Municipal Law Mystery: What is a 'Public Office ?'," 6 Rutgers L. Rev. 503 (1952). The court was not called upon to consider the meaning of the phrase "not now fixed by law" but in the course of its opinion Justice Depue stated that the act was designed to benefit persons holding a position "whose 'term of office' is not fixed by law." He seemingly considered that the language of the act could be read as of the time of its application rather than solely as of its passage; other courts have expressed the same view. See Larson v. American Title & Insurance Co., 52 So. 2 d 816, 818 (Fla. Sup. Ct. 1951); Arkansas Utilities Co. v. City of Paragould, 200 Ark. 1051, 143 S.W. 2 d 11, 13 (Sup. Ct. 1940); Protest of Chicago R.I. & P.R. Co., 137 Okl. 186, 279 P. 319, 324 (Sup. Ct. 1929); State ex rel. Brewster, Atty. Gen. v. Mayor and Com'rs of City of Lawrence, 101 Kan. 225, 165 P. 826 (Sup. Ct. 1917). In the Larson case the court noted that while the word "now" ordinarily refers to the date of the passage of the statute it may sometimes be given an ambulatory meaning to denote "the moment when, from time to time, the act is read and applied."

In Chapter 59 of the Laws of 1891 the Legislature provided that no Civil War veteran "now holding an appointive position in any city or county" shall be removed except for good cause. This act was declared unconstitutional in Pierson v. O'Connor, supra, 54 N.J.L., at page 42, on the ground that it improperly excluded Civil War veterans who

obtained positions after the passage of the act; the court did not consider whether the statute could be construed as ambulatory within the approach seemingly embraced in the Lewis case and expressly adopted in cases such as Larson v. American Title & Insurance Co., supra. In Cavenaugh v. Board of Chosen Freeholders of Essex County, 58 N.J.L. 531, 532 (Sup. Ct. 1896), the court's opinion by Justice Gummere paraphrased the reference in Chapter 155 of the Laws of 1895 to positions whose terms are "not now fixed by law" to mean "not fixed by law"; this was entirely consistent with language in the court's opinion in the Lewis case.

In L. 1907, c. 14 the Legislature adopted the Veterans' Tenure Act which now appears in N.J.S.A. 38:16-1; it was careful to avoid the difficulty dealt with in the O'Connor case by providing that the act shall apply to persons now holding or who may hereafter be appointed to a position or office; it did not alter the phrase "not now fixed by law," perhaps because it had apparently passed muster in the Lewis and Cavenaugh cases. In any event, the many later cases which have dealt with the Veterans' Tenure Act have consistently paraphrased it to refer to employments, positions and offices for terms "not fixed by law" and have not questioned its constitutionality. See Giorando v. Brady, 10 N.J. Misc. 832, 833 (Sup. Ct. 1932); May v. Board of Com'rs. of Town of Nutley, 111 N.J.L. 166, 169 (Sup. Ct. 1933); Grosso v. Erdman, 128 N.J.L. 223, 225 (Sup. Ct. 1942); DeVita v. Housing Authority of City of Paterson, 17 N.J. 350, 355 (1955); Barkus v. Sadloch, 20 N.J. 551, 553 (1956); cf. Gibraltar Factors Corp. v. Slapo, 23 N.J. 459, 463 (1957), appeal dismissed for want of a substantial federal question, 355 U.S. 13, 78 S. Ct. 44, 2 L. Ed. 2 d 20 (1957), where this Court, in dealing with an attack on the constitutionality of a 1933 statute, had this to say:

"It has long been applied without any question being raised as to its constitutionality. Singer v. Murray Holding Co., 23 N.J. Misc. 24 (Cir. Ct. 1944), ...


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