23 N.J. Misc. 334 | N.J. | 1945
Plaintiff, an unincorporated association, sues as the assignee of the claims of sixty-six members of the uniformed paid police department of the City of Hoboken for compensation alleged to be due to them for serving one day in each week, from March 12th, 1935, to the institution of this action, in excess of the limitation of six days of service in any one week prescribed by R. S. 40:47-17; N. J. S. A. 40:47-17.
The statute (R. S. 40:47-17; N. J. S. A. 40:47-17) provides as follows:
not exceed six days in any one week, but in case of an emergency the officer, board or other official having charge or control of all such police departments shall have full authority to summon and keep on duty any and all such officers during the period of the emergency, but within twelve months after such emergency eaeh uniformed member of such police de-1 partment shall be given a day off duty for each extra day so served by him, during the emergency.”
The mailer is presently before the court on defendant’s motion to strike the complaint on the grounds of its alleged legal insufficiency, and because an unincorporated association has no legal capacity to hold personal property or to contract, and, therefore, the aforesaid assignments of claims to the plaintiff are invalid and ineffective to sustain this action.
Two theories for recovery are advanced to support each individual elaim to compensation, and they are set forth in separate counts in the complaint. In other words eaeh assigned claim is set up in two separate counts.
In the first count respecting each of said claims, after stating the employment of the particular policeman from March 12th, 1935, to the institution of this action, it is alleged that “by virtue of the statute” (R. S. 40:47-17; N. J. S. A. 40:47—17) it became the duty of the defendant to regulate said employment in accordance therewith. It is then alleged that it also “became the duty of the defendant by virtue of the statute in such ease made and provided, as aforesaid, in the event that it employed the said [policeman] for more than six (6) days in any one (1) week to compensate [him] for the said extra day that it so employed him.” It is further alleged that the defendant employed the said policeman and that he performed services for the defendant “for seven (7) days in eaeh week” during all of the aforesaid period, “and the said defendant failed to give [him] days off for each extra day served * * * during any emergency. It then and there became the duty of the defendant * * * to compensate the said [policeman] for the reasonable value of the * * * services he rendered on the 7th day of each week * * *” as aforesaid, which has not been done.
It is a well settled rule, that a person accepting a public office with a fixed salary is bound to perform the duties of the office for the salary. He cannot claim additional compensation for the discharge of these duties, even though the salary may be a very inadequate remuneration for the services. Nor does it alter the ease that by subsequent statutes or ordinances his duties are increased and not his salary. His undertaking is to perform the duties of Ms office whatever they may be from time to time during his continuance in office for the compensation stipulated—whether these duties are diminished or increased. Whenever he considers the compensation inadequate, he is at liberty to resign. Evans v. City of Trenton, 24 N. J. L. 784, 766; State v. Paterson, 40 Id. 186; Knight v. Freeholders of Ocean, 48 Id. 70; 3 Atl. Rep. 344; Seymor v. Orange, 74 N. J. L. 549; 65 Atl. Rep. 1033. A policeman is a public officer within this rule. Specie v. Borough of Fairview, 7 N. J. Mis. R. 410; 145 Atl. Rep. 618.
Plaintiff acknowledges this rule but claims that the aforesaid statute (R. S. 40:47—17; N. J. S. A. 40:47-17) renders it inapplicable in the present case because, as stated in its brief, the intent of the legislature was to correct the mischief of the old rule whereby polieemen could be required “to work for unusually lengthy periods without extra compensation,” and the statute, by defining the regular working time of such officers, authorizes recovery of compensation for overtime service.
The difficulty with this contention lies in a misconception of the purpose of the legislation in question. It was not designed, as plaintiff supposes, to increase the compensation of polieemen for overtime service as in that type of statutes commonly referred to as “wages and hours” legislation, but rather
Turning now to the second count respecting the claim of each individual policeman, we find the pertinent averments to be as follows: “On the aforesaid date of March 12th, 1935, the said [policeman], and the defendant did agree that” the latter “should render services as a uniformed member of the Police Department of the defendant, and to be compensated as theretofore, but that the work week should consist of six (6) days only. The agreement further provided that in the event the said [policeman] should render services for a 7th
The question presented by this pleading is whether, in view of the aforesaid statute (R. S. 40:47—17; N. J. S. A. 40:47—17), the agreement of a municipality engaging and promising to pay for overtime services of the members of its police department can be enforced against it?
As already observed this statute provides that “the days of employment” of such policemen “shall not exceed six days in any one week” except in cases of emergency when a day off is allowed for each extra day served during such emergency. The presumption is that the word “shall” in a statute is used in an imperative and not in a directory sense. If a different interpretation is sought, it must rest upon something in the character of the legislation or in the context which justify a different meaning. Haythorn v. Van Keuren & Son, 79 N. J. L. 101, 105; 74 Atl. Rep. 502; State v. Wilcox, 2 N. J. Mis. R. 320. It was used in a mandatory or imperative sense in this statute which embodies the public policy of protecting the health and efficiency of regularly employed policemen. As was said by our Court of Errors and Appeals in the ease of John J. Carlin, Inc., v. O’Connor, 126 N. J. L. 243 (at p. 247); 17 Atl. Rep. (2d) 584, 586, “Better working conditions for labor have always been a real concern of the legislature. Such, in fact, can be said to constitute a public policy of this state.”
To effectuate this public policy in the ease of regularly employed policemen, R. S. 40:47-17; N. J. S. A. 40:47-17, places a definite limit on the authority of municipalities with respect to their employment. A municipality is without power to exceed the limitation upon continuous service therein fixed.
The case sub judice is different from a suit against a private corporation on a claim arising out of an ultra vires contract. The defendant in this case is a municipal corporation. The alleged agreements out of which the plaintiffs claims arise are ultra vires, not because of the provisions of some private charter, but because they violate the public policy of this state as expressed in the aforesaid statute. Eckert v. West Orange, 90 N. J. L. 545 (at p. 549); 101 Atl. Rep. 269. The evil aimed at by this statute is the confining work of policemen and its effect upon their health and efficiency, and the public policy expressed with respect thereto cannot be maintained by upholding contracts made in violation thereof. This is emphasized by contrasting the present situation with that involved in the ease of John J. Carlin, Inc., v. O’Connor, supra, 126 N J. L. (at p. 247); 17 Atl. Rep. (2d) 586.
Where a contract is made by a municipal corporation which is not warranted by the statutory authority conferred upon it, the governing body of the corporation has at all times the right to treat the contract as void and to refuse compliance therewith. A reason frequently advanced in support of this
Furthermore, the law will not permit recovery on a quantum meruit in a suit against a municipality where an express contract would be ultra vires. Recovery has frequently been allowed on a quantum meruit, where there has been some unimportant irregularity in the proceedings, or an innocent mistake as to some matter of fact. But the law will not raise an implied promise which would, as in this ease, be in direct defiance of an act of the legislature. Otherwise this statute (R. S. 40:47—17; N. J. S. A. 40:47—17), which applies to all municipalities alike, and represents a definite public policy, could be nullified by proof of the fact that the particular policeman had worked overtime and therefore was entitled to what sueh work was reasonably worth. It is a fallacy to argue that the law will raise an implied power to pay for the services after they have been rendered. The impediment to such a theory is that the municipal corporation has not the power to make the promise thus sought to be implied. Eckert v. West Orange, supra, 90 N. J. L. (at p. 550); 101 Atl. Rep. 269. To hold otherwise in this ease would amount to judicial repeal of a beneficent public policy established by legislative authority.
A form of order may he presented in accordance with the conclusion hereinabove expressed.