Submitted February 17, 1933 —
Decided April 27, 1933.
Where the salary of the incumbent of the two offices of township collector and township treasurer was fixed at a certain sum by the township committee, without any separate reference to one or the other office, and subsequently, after such incumbent ceased to hold the office of treasurer, but continued in office as collector, the salary for the office of collector was fixed at a sum less than the salary for the two offices, such action was not a reduction of the collector's salary, as such.
On appeal from the Supreme Court.
The cause was heard by Mr. Justice Trenchard sitting alone as the Supreme Court by consent of counsel, and in deciding the matter he sent a memorandum to counsel in which he expressed the following views:
"It appears that this writ of certiorari brings up the resolution of the township committee concerning the salary of the collector passed January 21st, 1931.
"It further appears that the prosecutor, Perrine, prior to 1931 occupied the office of treasurer by election of the township committee, and also occupied the office of collector by election thereto by popular vote at the general election. His term as treasurer and his term as collector both expired on January 1st, 1931. He was re-elected collector of the township for a term of three years at the November election, 1930, and duly qualified January 1st, 1931. He was not re-elected or reappointed treasurer at the end of his term expiring January 1st, 1931, nor at any time thereafter. But in the month of February, 1931, one Drake was elected or appointed treasurer of the township by the township committee and immediately duly qualified as such. On January 21st, 1931, the township committee passed a resolution fixing the salary of the collector at $325 and of the treasurer at $150 per year for the year 1931.
"The right of the township committee to appoint or elect Drake treasurer, as it did do in 1931, is not challenged by the prosecutor, the sole contention of the prosecutor being that the resolution of January 21st, 1931, fixing his salary as collector at $325 is invalid solely because it was not competent for the township committee to reduce his salary as collector during the term for which he has been elected.
"It seems to me that it does not appear that the prosecutor's salary as collector was reduced.
"Of course I recognize the rule to which reference was made in Potter v. Union Township, 91 N.J.L. 705, that where the salary of a collector has been fixed for the office and is unchanged by the committee at the beginning of the term of the newly elected collector, and before he entered on the duties of his office, he would be entitled to the salary so fixed.
"Now the last action of the township committee touching salaries prior to January 1st, 1931, was their resolution passed January 7th, 1930, which reads in part: `that salaries * * * for officials * * * for the year 1930 be as follows: Collector and treasurer $475.' There was no separation of the salary between the two offices, and the prosecutor was paid the $475 without any separate reference to one or the other office. It seems quite clear, therefore, that the township committee, as a matter of fact, fixed no separate salary for the collector, but, on the contrary, fixed it at an indefinite amount to be comprehended in that fixed for both the entirely separate and distinct offices of treasurer and collector.
"I therefore conclude that the objection now urged against the resolution of January 21st, 1931, fixing the salary of the collector, cannot result in rendering it invalid. I have not considered any other question."
For the appellant, Aaron V. Dawes.
For the respondent, Harvey T. Satterthwaite.
The judgment under review will be affirmed, for the reasons stated by Mr. Justice Trenchard in his memorandum to counsel set forth above.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, DILL, JJ. 14.
For reversal — None.