For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Jacobs, J.
The appellants Mastrobattista and Milbauer are Essex County Park patrolmen who, after having been suspended and dismissed on departmental charges, were later restored to duty by the Civil Service Commission which found them not guilty. The opinions and orders of the Civil Service Commission made no mention of back pay and although Mastrobattista later requested that the Commission reopen his matter with respect to that issue, his request was denied, apparently without any accompanying opinion. Thereafter each of the appellants filed a separate complaint in the Law Division against the Park Commission alleging that no salary during the period of suspension and dismissal was paid to him and claiming that he was entitled to his back salary in full, plus interest and costs. The complaints were consolidated for trial, the facts were stipulated, and arguments on the stipulated facts were duly presented.
The trial court concluded that under R.S. 11:15-6 and Miele v. McGuire, 31 N.J. 339 (1960), the appellants (both were in the classified civil service (R.S. 11:22-3)) were entitled to their back pay less the sums earned by them in other employment during their suspensions and dismissals. On appeal, the Appellate Division reversed and remanded for the entry of judgment in favor of the Park Commission. Mastrobattista v. Essex County Park Comm., 85 N.J. Super. 283 (App. Div. 1964). The Appellate Division's approach
was that, since the appellants were the holders of "offices" rather than "positions or employments," they were not governed by R.S. 11:15-6 or Miele v. McGuire, supra, but were subject to the common law principle that a public officer could not recover any back pay for the period of suspension or removal, notwithstanding his later restoration to duty. See DeMarco v. Bd. of Chosen Freeholders of Bergen County, 21 N.J. 136 (1956); Winne v. Bergen County, 21 N.J. 311 (1956); see also, Glasser, "A New Jersey Municipal Law Mystery: What is a 'Public Office?'," 6 Rutgers L. Rev. 503 (1952); Note, "The Right of New Jersey's Governmental Officers and Employees to Recover for Back Pay When Illegally Dismissed or Suspended," 15 Rutgers L. Rev. 516 (1961). We granted certification on the appellants' application. 44 N.J. 581 (1965).
The common law cases were discussed in DeMarco (21 N.J. 136) and need not be detailed here. They drew distinctions between offices, positions and employments which were described in Miele as "somewhat obscure and rather unfortunate" (31 N.J., at p. 347) and by Glasser as "seriously lacking in realistic usefulness." 6 Rutgers L. Rev., at p. 503. They led to disparate treatment among comparables, now difficult to justify. Thus in Ross v. Freeholders of Hudson, 90 N.J.L. 522 (E. & A. 1917), the court held that a guard in the Hudson County jail who had been restored to duty after a departmental dismissal could recover his back pay, less mitigation for earnings in other employment during the period of his dismissal; and in Miele the holding in Ross was applied to allow recovery of back pay, less mitigation, by a river inspector of the Passaic Valley Sewerage Commissioners. 31 N.J., at p. 352. The plaintiffs in Ross and Miele were viewed as the holders of positions or employments rather than offices. However, in instances where the litigants before the courts were viewed as the holders of offices, they were denied all back pay though the underlying facts and the equitable considerations were not distinguishable in any significant aspects from those in Ross and Miele. See, e.g., Gobac v.
Davis, 62 N.J. Super. 148 (Law Div. 1960), which dealt with an Alcoholic Beverage Control investigator; Hillel v. Edgewater, 106 N.J.L. 481 (E. & A. 1930), and Strohmeyer v. Little Ferry, 136 N.J.L. 485 (E. & A. 1948), which dealt with municipal police officers; but cf. N.J.S.A. 40:46-34; McGrath v. Jersey City, 38 N.J. 31 (1962); Graham v. Asbury Park, 37 N.J. 166 (1962).
Current concepts of fair play in employment relationships suggest that persons in the public service who have been suspended or removed on charges later determined to be unfounded should be made whole insofar as possible; they should be entitled not only to restoration of duties but should also suffer no loss in their earnings. This is the course taken by many statutes and decisions in the federal sphere and in our sister states (see Vitarelli v. United States, 279 F.2d 878, 150 Ct. Cl. 59 (Ct. Cl. 1960); Mass v. Board of Education, 61 Cal. 2 d 612, 39 Cal. Rptr. 739, 394 P. 2 d 579 (1964); McKenna v. Commissioner of Mental Health, 347 Mass. 674, 199 N.E. 2 d 686 (1964); People ex rel. Bourne v. Johnson, 48 Ill. App. 2 d 307, 199 N.E. 2 d 68 (1964), aff'd 32 Ill. 2 d 324, 205 N.E. 2 d 470 (1965); see also the references in McGrath v. Jersey City, supra, 38 N.J., at p. 32); although these out-of-state pronouncements may leave room for some divergence of opinion as to the applicable extent of the doctrine of mitigation (Lower Merion Township v. Turkelson, 403 Pa. 72, 169 A. 2 d 97 (1961)), they afford no basis for the denial of back pay on any technical distinctions between offices, positions and employments.
We have on many occasions recommended that the Legislature deal further with the subject. In DeMarco we noted that it might well adopt a comprehensive enactment providing "compensatory protection for all public officers and employees who are suspended pending trial and are later acquitted or otherwise vindicated"; and we pointed out that in connection with such an enactment, consideration should be given "to the need for appropriate provisions which would safeguard the public against a claim for an unduly long period of suspension
where the officer or employee has failed to make reasonable efforts to obtain expeditious determination of the charges against him and against excessive compensation where he has had fair opportunity to engage in gainful private employment during the period of his suspension." 21 N.J., at pp. 147-148. Shortly after DeMarco was decided, the Senate and Assembly passed a bill which allowed back pay to all public employees, including the holders of State, county and municipal offices and positions, but it was vetoed by the Governor largely because it failed to provide for mitigation. No subsequent legislation has been enacted though the recommendation therefor has been repeated on several occasions. See Miele v. McGuire, supra, 31 N.J., at p. 351; Graham v. Asbury Park, supra, 37 N.J., at p. 167; McGrath v. Jersey City, supra, 38 N.J. 31.
It has been suggested in academic circles that this Court should now discard the common law differentiation between offices, positions and employments. See Note, supra, 15 Rutgers L. Rev., at p. 522. In many fields of private law we have readily remolded common law principles to meet current concepts and needs. See, e.g., Smith v. Brennan, 31 N.J. 353, 361-362 (1960); Collopy v. Newark Eye and Ear Infirmary, 27 N.J. 29, 41-48 (1958). We have been reluctant to do so in this field since it deals with public employment relationships and concerns public rather than private funds. Nevertheless, there is no question as to our authority in the premises and if called upon we might now be prepared to re-examine the long line of common law cases discussed in DeMarco. The appellants have not urged any such re-examination and, in any event, it need not be undertaken here since, as we view the Civil Service Act and particularly R.S. 11:15-6 and N.J.S.A. 11:2A-1, the Legislature has empowered the ...