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Gudgeon v. County of Ocean

Decided: June 24, 1975.

LAURENCE GUDGEON, PLAINTIFF-RESPONDENT,
v.
COUNTY OF OCEAN, NEW JERSEY; BOARD OF CHOSEN FREEHOLDERS, OCEAN COUNTY, NEW JERSEY, AND MARTIN B. ANTON, PROSECUTOR OF OCEAN COUNTY, NEW JERSEY, DEFENDANTS-APPELLANTS



Leonard, Seidman and Bischoff. The opinion of the court was delivered by Bischoff, J.A.D.

Bischoff

Plaintiff had been employed by the Middlesex County Sheriff's office for 11 years and rose to the rank of captain. He then took and passed a Civil Service examination and accepted a position as a detective in the Ocean County Prosceutor's Office on February 28, 1974. As of that date he had accumulated 177 sick days, 16 vacation days and a 2% longevity pay increment. Subsequent to his appointment in Ocean County he requested that county to accept the transfer of these employment credits. The request was denied. Thereupon plaintiff filed a complaint seeking a mandatory injunction to compel the County of Ocean to accept the transfer of those credits. Following a hearing a judgment was entered in plaintiff's favor, and defendants appeal.

The trial judge, as does plaintiff on this appeal, relied upon N.J.S.A. 40A:9-5, which provides:

Whenever heretofore or hereafter a transfer has been or shall be effected by appointment, assignment or promotion of a municipal employee to any other department or position in municipal employment, or to a position or department of the county government; or of

a county employee to any other position or department in county employment, or to a department or position of a municipal government, in counties of the first or second class, the period of such prior service in said county or municipal employment, for any purpose whatsoever, shall be computed as if the whole period of employment of such employee had been in the service of the department, or in the position, to which the said employee had been transferred.

Defendant first contends this statute only applies to involuntary transfers. This contention is without merit. Five-house v. Passaic Valley Water Comm'n, 127 N.J. Super. 451, 454-455 (App. Div.), certif. den. 65 N.J. 565 (1974); Libby v. Union Cty. Bd. of Chosen Freeholders, 125 N.J. Super. 471 (App. Div. 1973).

Defendant's second contention is more substantial. It argues that a consideration of the legislative history of this statute, as well as the punctuation thereof, indicates a clear intention that the statute was only to apply to transfers involving counties on the first and second classes, and that since Ocean County is a county of the fifth class the statute is not applicable. We agree.

We approach this problem of statutory construction bearing in mind the constitutional mandate that statute concerning counties shall be liberally construed in their favor. N.J. Const. (1947), Art. IV, ยง VII, par. 11; Bergen Cty. v. Dept. of Pub. Util. of N.J., 117 N.J. Super. 304, 310 (App. Div. 1971).

"The judicial goal is to carry out fairly the legislative principle and plan," N.J. Pharmaceutical Ass'n v. Furman, 33 N.J. 121, 130 (1960), and in seeking to ascertain what that purpose and plan was we must consider any legislative history which may be of aid. State v. Madden, 61 N.J. 377, 389 (1972).

The legislative history of this statute (N.J.S.A. 40A:9-5) has received judicial consideration in the case of Carroll v. Caufield, 80 N.J. Super. 472, 479 (Law Div. 1963). As it is there indicated, the predecessor to the statute under consideration was R.S. 40:11-5 and the preamble to that act read:

An Act to conserve the seniority rights of municipal employees and county employees appointed, transferred, assigned or promoted, to other positions or departments in the municipal employ, or in the county service, in ...


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