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In re Salaries for Probation Officers of Hudson County

Decided: March 29, 1978.

IN RE: SALARIES FOR PROBATION OFFICERS OF HUDSON COUNTY, 1976-1977


On appeal from Hudson County Court.

Fritz, Botter and Ard.

Per Curiam

This appeal involves the single question of whether the salaries of county probation officers are to be fixed by the County Court judges as heretofore in accordance with the provisions of N.J.S.A. 2A:168-5 and 8, or by the appropriate county official in counties operating under a form of government authorized by the Optional County Charter Law, N.J.S.A. 40:41A-1 et seq. The answer to this question in turn requires a determination as to whether the later statutes impliedly repealed the former. The appeal is brought by the board of chosen freeholders and the county executive of Hudson County,*fn1 protesting the response by the judges of that county, sitting en banc, answering the question of implied repealer in the negative. We agree with the County Court judges and affirm.

We start with the clear proposition that appellants can prevail, if at all, only if they can demonstrate in the Optional County Charter Law an implied repealer of N.J.S.A. 2A:168-8. Otherwise the best that could be said for their position is that a conflict between that statute and the Optional County Charter Law existed. In such case, we will accord preference to the specific delegation of the Title 2A statute rather than the general designation of Title 40,

as a more precise manifestation of legislative intent. Kingsley v. Wes Outdoor Advertising Co. , 55 N.J. 336, 339 (1970); Lawrence et al. v. Butcher , 130 N.J. Super. 209, 212 (App. Div. 1974); 2A Sutherland, Statutory Construction (4 ed. 1973), ยง 51.05 at 315.

We would also observe at the outset that we are not unaware of the fact, made manifest in the reports of the County and Municipal Government Study Commission (L. 1966, c. 28), that a dramatic restructuring of county administration with an especial eye to fiscal management was the intention of the Commission and so of the Legislature. We recognize that the Legislature expressed an intention to widen its grant of powers under the Optional County Charter Law to as broad a base "as is consistent with the Constitution of New Jersey and with general law relating to local government," N.J.S.A. 40:41A-30, and to provide for liberal construction of that grant. Ibid.

Nevertheless, to suggest that this generosity impliedly repealed the specific delegation by statute to the respective county court judges of the power to "fix * * * annual salaries to be paid" probation officers (N.J.S.A. 2A:168-8), is to misunderstand the nature of the probation officer. The essence of this office and the officer has recently been the subject of extended and articulate exposition. Passaic Cty. Probation Officers' Ass'n v. Passaic Cty. , 73 N.J. 247 (1977). Despite the fact that probation officers are paid by the county,*fn2 it was there made clear that the importance and vitality of their role in the administration of justice, both in the criminal and civil courts throughout the State, produces their character as "an integral part of the court system." 73 N.J. at 253. Their supervision by the court was declared to have its basis in constitutional mandate.

This alone serves to distinguish the probation office from a park commission (Union Cty. Park Comm'n v. Union Cty. , 154 N.J. Super. 213 (Law Div. 1976), aff'd o.b. 154 N.J. Super. 125 (App. Div. 1977)), a county community college Mercer Cty. Comm. Coll. Bd. of Trust. v. Sypek , 151 N.J. Super. 1 (Law Div. 1977)), a mosquito extermination commission (Union Cty. v. State , 149 N.J. Super. 399 (Law Div. 1977)) or a welfare board (Amer. Fed'n State, Cty. Mun. Emp. v. Hudson Welf. Bd. , 141 N.J. Super. 25 (Ch. Div. 1976)).

We are satisfied that the Legislature was aware of this scheme of things when it enacted the Optional County Charter Law. The Legislature is "thoroughly conversant" with its own legislation, Brewer v. Porch , 53 N.J. 167, 174 (1969) and was, we are certain, entirely aware of the regular, consistent and uniform application of N.J.S.A. 2A:168-8. In these circumstances, there is every reason to indulge the presumption against implied repealer in our search for legislative intent. Brewer v. Porch, supra , 53 N.J. at 173; Goff v. Hunt , 6 N.J. 600, 606 (1951).

Were it necessary to construe the concededly ambiguous terms of N.J.S.A. 40:41A-26, to ascertain the intent of the Legislature in its reference to the "general law" alongside of which the Optional County Charter Law was to govern the counties (N.J.S.A. 40:41A-25), we might well incline to read sections (a) and (b) conjunctively and this conjunctive pair as disjunctive from section (c). To us this seems a natural distinction where specifically enumerated subjects -- in section (c) -- are obviously intended to be preserved. Such an interpretation would, of course, expressly deny a repealer. In fact, it would assert a nonrepealer. But we need not undertake this effort. The general law to which reference is made clearly ...


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