Decided: April 2, 1962.
JOHN GRAHAM AND DAVID JONES, PLAINTIFFS-RESPONDENTS,
CITY OF ASBURY PARK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT
For affirmance -- Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None.
[37 NJ Page 166] We affirm for the reasons expressed by Judge Freund in Graham v. Asbury Park, 69 N.J. Super. 256 (App. Div. 1961). Since the parties before us have not raised the issue of mitigation (compare D'Elia v. Jersey
[37 NJ Page 167]
City, 57 N.J. Super. 466 (App. Div. 1959) with Miele v. McGuire, 31 N.J. 339 (1960)) we find no present occasion for dealing with it. See Lowenstein v. Newark Bd. of Education, 35 N.J. 94, 124 (1961); McGrath v. Jersey City, 70 N.J. Super. 143, 147 (Law Div. 1961). We do, however, repeat the suggestion made in De Marco v. Bd. of Chosen Freeholders of Bergen County, 21 N.J. 136, 147 (1956), and more recently in Miele v. McGuire, supra, 31 N.J., at 351, that the Legislature give consideration to the adoption of a specific enactment dealing comprehensively with the subject and measure of the allowance of back pay to municipal, county and state officers and employees who are suspended pending trial or hearing on indictment or charges and are later acquitted or otherwise vindicated. Cf. Cal. Gov. Code, § 19584; N.Y. Civil Service Law, McKinney's Consol. Laws, c. 7, §§ 77, 75(3); Mullane v. McKenzie, 269 N.Y. 369, 199 N.E. 624, 103 A.L.R. 758 (1936), reargument denied 270 N.Y. 563, 200 N.E. 319 (1936).