192 A. 591 | N.J. | 1937
The case involves the construction and applicability of chapter 149 of the laws of 1919 (Pamph. L., p. 323; Cum. Supp. Comp.Stat. 1924, p. 2137) amending chapter 139 of Pamph. L. 1918,p. 322. The first section reads as follows:
"Whenever any municipal officer or employe has been or shall be illegally dismissed from such office or employment and the said dismissal has been or shall be set aside as illegal by a court of competent jurisdiction, such officer or employe shall be entitled to recover the salary of such office or employment for the period covered by such illegal dismissal."
The act was held constitutional in State, Jardot v. Rahway,3 N.J. Mis. R. 201, and no question is now raised on that score.
The plaintiff, who had been employed as a school janitor by the defendant, was dismissed, and another was appointed in his place. He appealed to the commissioner of education, *312
who held the dismissal unlawful and ordered reinstatement. Review of this decision by the state board of education, by this court on certiorari (
The case is submitted on briefs, and the argument for appellant, as we understand it, is that the act being in derogation of the common law should be strictly construed, and that applying this rule, the act means no more than to reaffirm the rule of the common law. To quote from the brief: "Since no specific mention or provision is made in the statute, to the effect that where payment of the salary of a position has been made, once to a de facto incumbent, that even in that event it can be collected again by the employe de jure entitled to the position, thereby specifically changing the rule of McDonald v.Newark, supra, then under the strict rules of statutory construction, which should apply with regard to such statutes in derogation of the common law, we respectfully *313 contend that this court should not read this rule into the statute."
If this view were to prevail, it would result in a finding that the legislature meant nothing except to enact a useless statute, applicable only to cases where no substitute had been employed and paid, and where in addition the displaced official or employe had secured an adjudication that the displacement was unlawful. See Keegle v. Hudson County,
The judgment under review will be affirmed. *314