Gardner v. Bd. Of Trustees Of North Carolina Local
| Decision Date | 05 June 1946 |
| Docket Number | No. 527.,527. |
| Citation | 226 N.C. 465,38 S.E.2d 314 |
| Court | North Carolina Supreme Court |
| Parties | GARDNER. v. BOARD OF TRUSTEES OF NORTH CAROLINA LOCAL GOVERNMENTAL EMPLOYEES' RETIREMENT SYSTEM. |
Appeal from Superior Court, Mecklenburg County; Wm. H. Bobbin, Judge.
Mandamus by R. C. Gardner against Board of Trustees of North Carolina Local Governmental Employees' Retirement System to require defendant to accept and enroll plaintiff as a member of defendant's retirement system. Judgment on the pleadings for defendant, and plaintiff appeals.
Affirmed.
Petition for mandamus to require defendant to accept and enroll plaintiff as a member of its retirement system.
Judgment was rendered on the pleadings for defendant and the plaintiff appealed.
John D. Shaw, of Charlotte, for appellant.
Harry McMullan, Atty. Gen., and Ralph Moody, Asst., Atty. Gen., for appellee.
The question presented by this appeal is whether a city policeman, who is a member of and entitled to the benefits of the Law Enforcement Officers' Benefit and Retirement Fund, is also eligible to become a member of the Local Governmental Employees' Retirement System.
The court below held that plaintiff was excluded from membership in the Local Governmental Employees' Retirement System by reason of the express provisions of the statute, G.S. § 128-24(2).
It was admitted in the pleadings that the plaintiff is and has been for a number of years a member of the police department of the City of Charlotte, and as such is a member in good standing in the Law Enforcement Officers' Benefit and Retirement Fund, a corporate body created and established by Ch. 349, Public Laws 1937, now G.S. § 143-166.
February 15, 1946, the plaintiff signified his desire to become also a member of the Local Governmental Employees' Retirement System, a corporate body created by statute, now codified as G.S. § 128-24. The plaintiff's employer, the City of Charlotte, now participating in the Local Governmental Employees' Retirement System, thereupon deducted the proper amount from plaintiff's salary and transmitted it, together with the added amount from the city's funds, as provided by the statute, to the defendant. The defendant declined to accept plaintiff as a member of its system and returned the contribution. This action was based on the ground that plaintiff was excluded from membership in the Local Governmental Employees' Retirement System by the following provision in the statute: "Persons who are or who shall become members of any existing retirement system and who are or who may be thereby entitled to benefits by existing laws providing for retirement allowances for employees wholly or partly at the expense of funds drawn from the treasury of the State of North Carolina or of any political subdivision thereof, shall not be members." G.S. § 128-24(2).
It is conceded that the plaintiff as an employee of the City of Charlotte would be entitled to make contributions and receive the benefits provided for local governmental employees by G.S. § 128-24, unless he is rendered ineligible therefor because of his membership in the Law Enforcement Officers' Benefit and Retirement Fund and his right as such member to receive retirement allowances which are provided "wholly or partly at the expense of funds drawn from the treasury of the State."
The funds for retirement allowances and other benefits under the Law Enforcement Officers' System are obtained in part by deductions from members' salaries, but more largely are provided by state law, G.S. § 143-166, from the following source:
"In every criminal case finally disposed of in the criminal courts of this state, wherein the defendant is convicted * * * and is assessed with the payment of costs * * * there shall be assessed against said convicted person * * * two dollars ($2.00) additional cost to be collected and paid over to the treasurer...
To continue reading
Request your trial