For reversal and remandment -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman and Clifford and Judge Conford. For affirmance -- None. The opinion of the court was delivered by Mountain, J.
[73 NJ Page 3] This case presents a single issue of statutory construction. N.J.S.A. 40A:14-151 provides that whenever the suspension or dismissal of a municipal police officer is judicially determined to have been illegal, the officer shall be entitled to recover his salary from the date of such suspension or dismissal.*fn1 The defendant in this suit is admittedly entitled to relief under the act; the only
question is, how much should he recover? At the time of his improper dismissal, defendant was on mandatory sick leave and was not then receiving his regular remuneration. Rather, he was being paid disability benefits in lieu of salary under an insurance plan covering members of the police department. The precise point for determination is whether he is now entitled to recover his regular salary for the period in question, or whether instead, his recovery should be limited to that amount of compensation which he would actually have received but for the illegal dismissal.
Defendant sustained an injury to his knee in April, 1972. Following a period of hospitalization, he returned to light duty in June of that year. Except for a brief interruption for further hospitalization related to the injury, he continued to perform light duty until April, 1973.
On April 13, 1973 the Chief of Police ordered defendant to undergo an intensive course of physiotherapy and placed him on mandatory sick leave. While on sick leave, defendant received, in lieu of salary, disability benefits from the municipality's group health insurance carrier.
On August 2, 1973, following a physical examination by a physician designated by the Police Department, defendant was ordered to resume full duty. His personal physician advised him that he was not fit to do so, and hence he declined.
Disciplinary charges were filed and defendant was suspended. Upon his suspension the insurance payments ceased. Following a disciplinary hearing, the Township Committee found that the charges had been sustained; defendant's dismissal from the police force followed. A trial de novo before the County Court led to a reversal of the order of dismissal and the entry of judgment directing that defendant be reinstated with "all the rights and privileges as a member of the Police Department as of August 2, 1973." The Township was ordered to pay defendant his full back salary with interest for the period from August 2, 1973 to July 1, 1974. This included increases in the amount
of salary that had gone into effect during this period. Plaintiff was also ordered to pay defendant accrued allowances including holiday and vacation pay, college credit allowance and plaintiff's stipulated contribution on defendant's behalf to the Policemen's and Firemen's Retirement Fund.
In an unreported opinion the Appellate Division affirmed the judgment of the County Court. We granted plaintiff's petition for certification. 69 N.J. 447 (1976).
The legislative purpose sought to be achieved by this statute is reasonably clear. At common law in this State the status of one who is in the public employ determines whether or not he may recover the remuneration that has been denied him by an illegal suspension or dismissal. If he holds an "office," recovery is not available. If he holds a "position," then recovery, potentially at least, is possible. It is well-settled that policemen are municipal officers and not merely the holders of positions. Mercadante v. City of Paterson, 111 N.J. Super. 35, 38 (Ch. Div. 1970), aff'd o.b. 58 N.J. 112 (1971). The leading case in this State for the proposition that the holder of an office cannot recover compensation lost because of illegal suspension or dismissal is City of Hoboken v. Gear, 27 N.J.L. 265 (Sup. Ct. 1859). There the court described the nature of a public office in these terms,
[I]n the absence of constitutional restriction, the compensation or salary of public officers may be diminished, or their duties increased, or the mode of remuneration be changed during their continuance in office, without any infringement or violation of contract. An appointment to a public office, therefore, either by government or by a municipal corporation, under a law fixing the compensation and the term of its continuance, is neither a contract between the public and the officer that the service shall continue during the designated term, nor that the salary shall not be changed during the term of office. It is at most ...