Winne v. County of Bergen

Wachenfeld, J.

(dissenting). I would affirm the judgment below primarily for the reasons stated by Judge O’Dea at the trial level.

The status of labor and its relation to our community life has undergone marked changes with the passage of the years from the time of the common-law era, and the doctrines then in vogue have long since been outmoded and the principles true as of yesteryear are no longer applicable.

I doubt if the modern, enlightened concept of labor concedes a forfeiture of emoluments when the stoppage of the *324 work is due to the unjustified interjection of an intervening cause beyond the control of the laborer and without his fault, including an accusation of dereliction of duty subsequently determined to be baseless through the application of judicial processes in a fair trial guaranteed by the Constitution.

In my view, our appraisal as to whether or not the salary here should be paid under the circumstances is wholly nugatory. The payment has been provided for and directed by an act of the Legislature and it is as binding upon us as it is upon the respondent. I cannot join in an adjudication I consider in defiance of a legislative mandate.

N. J. S. A. 52:17A-5, under which the Attorney-General was called into Bergen County by the freeholders, provides specifically that no compensation paid to the Attorney-General by the county “shall affect the salary of a county prosecutor.” It means just what it says and it could not have been said with greater clarity. To ignore it is to distort its meaning as well as its purpose. It needs no “sweeping” interpretation, as referred to in the majority opinion, to come to such a conclusion. All that is required is a commonsense, practical and realistic appraisal of the everyday use of the English language.

Nor do I agree that this issue, as stated in the majority opinion, was “casually referred to” in State v. Winne, 12 N. J. 152 (1953). The majority of the court there gave the problem more than a passing nod. It actually stopped for a good look at the language, admitted it didn’t like what it saw, but despite its embarrassment it made a frank appraisal, saying, through the Chief Justice, at page 172:

“Indeed, under R. S. 2:182-2 his salary is not suspended for the first three months that the Attorney-General takes over his duties, and the balance of his salary is payable at the termination of the attendance of the Attorney-General. N. J. S. A. 52:17A-5 is even more favorable to the county prosecutor in providing ‘that no compensation so allowed lio the Attorney-General] shall affect the salary of the prosecutor or assistant prosecutors’ * * (Emphasis supplied)

This is hardly in accord with its present version.

*325 The majority says: “We assume, as the plaintiff urges, that his office could be terminated only by impeachment * * * and that any steps aimed at circumventing the prescribed method would be stricken by the courts * * but then it asserts that “no steps aimed at circumventing the Constitution were ever taken.”

After saying the constitutional officer would be fully protected by the courts, we, the court of last resort, now strip the prosecutor of the emoluments of his constitutional office and do exactly what we said we would prevent others from doing. Of course, our forfeiture of the respondent’s office is by indirection, but it will nevertheless in the end prove quite decisive.

If the Legislature had attempted to eliminate the salary rather than specifically provide for its payment as it did, it would have been ineffectual because where an office is created by and an incumbent is appointed for a term of years under a Constitution, he can be removed only by impeachment and the Legislature may not by indirection circumvent these provisions.

To deprive the incumbent of the emoluments of his office by judicial decree, as the majority is doing here, is to tres-, pass directly and to a destructive degree upon his constitutional rights, which we are, according to all precedent, supposed to protect.

“A constitutional officer may not be legislated out of office and what may not be done directly is likewise prohibited indirectly, as, for instance, by repealing all provisions for the payment of compensation or, in the case of a circuit judge, by abolishing his circuit * * 43 Am. Jur., Public Officers, sec. 191, p. 37.

I would affirm the judgment below.

Justice Oliphant joins in this dissent.

For reversal—Chief Justice Vanderbilt, and Justices Heher, Burling, Jacobs and Brennan—5.

For affirmance—Justices Oliphant and Wacheneeld—2.