Murphy v. Zink

• Decision Date: 21 July 1947
• Docket Number: No. 243.,243.
• Parties: MURPHY v. ZINK, Comptroller of Treasury.
• Court: New Jersey Supreme Court

136 N.J.L. 235

54 A.2d 250

MURPHY

v.ZINK, Comptroller of Treasury.

No. 243.

Supreme Court of New Jersey.

July 21, 1947.

Certiorari proceeding by Edward A. Murphy against Homer C. Zink, Comptroller of the Treasury of the State of New Jersey, to review the action of the Comptroller in rejecting the application of prosecutor for retirement from the position of legal assistant, grade I in the Court of Chancery of the State of New Jersey, and for a pension of one-half of the annual salary received from said position.

Action of Comptroller set aside.

January term, 1947, before J. BODINE, WACHENFELD, and BURLING, JJ.

Milton, McNulty & Augelli, of Jersey City (Anthony T. Augelli, of Jersey City, of counsel), for prosecutor.

Walter D. Van Riper, Atty. Gen., for respondent.

BURLING, Justice.

A writ of certiorari was granted to review the action of the respondent in rejecting the application of the prosecutor, Edward A. Murphy, for retirement from the position of Legal Assistant, Grade I, in the Court of Chancery of the State of New Jersey and for a pension of one half of the annual salary received from said position. The application by the prosecutor for retirement was granted and a pension was granted by an order of the Chancellor of the State of New Jersey, dated May 3, 1946, which order was to become effective as of May 31, 1946.

There are many statutory clauses and conditions for the retirement of public employees on pension and for the establishment and upkeep of pension funds.

The prosecutor asserts his right to be retired on pension pursuant to the provisions of Chapter 4, with headnote ‘Veterans' of Title 43, N.J.S.A. 43:4-1 et seq., classified under ‘Pensions and Retirement,’ of the Revised Statutes and also Chapter 175 Laws of 1945, which is classified under Title 38 ‘Militia-Soldiers, Sailors and Marines' and found in the cumulative pocket part under the following designation: R. S. 38:23A-3, N.J.S.A., under the head note ‘Special Privileges and Exemptions of Persons in Military and Naval Service.’

The respondent denies his right to be retired upon a pension upon two grounds: (1) That the prosecutor has failed to show twenty years of service as required under the first act and (2) that the second act referred to has no application to the subject matter of this controversy.

On October 16, 1924, Murphy was appointed a Building Contracts and General Clerk in the Hudson County Clerk's Office, and as such served continuously in the service of Hudson County until April 1, 1930, at which time and as the result of a competitive Civil Service examination, he was transferred to the Sheriff's Office of said County as an Assistant Bookkeeper. He continued in the service of Hudson County as an Assistant Bookkeeper in the Sheriff's Office until May 1, 1933, when, effective as of that date, he was granted a leave of absence from his county position to enter the service of the State of New Jersey.

On May 1, 1933, Murphy was appointed to the position of Confidential Agent and Sergeant-at-Arms of the Court of Chancery of New Jersey, by the Chancellor, in which position he served continuously in the services of the State from the date of his appointment to the present time. The title of his position was changed by the Civil Service Commission to Legal Assistant, Grade I, on July 1, 1945, the change to be effective as of December 1, 1944.

He is an honorably discharged veteran of World War I, and is also a veteran of World War II, he having been honorably relieved from active duty and having reverted to status of an inactive officer of the Army of the United States. He is incapacitated for the duties of his position of Legal Assistant, Grade I, in the Court of Chancery of New Jersey, because he is afflicted with a disease which examining physicians have termed ‘arthritis, chronic, osteoarthritic type’ and the said disease is not curable. He was paid for his services as Legal Assistant, Grade I, in the Court of Chancery a compensation of $5100 per year.

The applicable sections of the Veterans' Pension Act as amended in 1944 are set forth in R.S. 43:4-1 and part of 2 N.J.S.A. and provide as follows:

‘43:4-1. Application of chapter extended to certain veterans. This chapter shall apply to and include persons serving in and honorably discharged from the military or naval service of the United States, including nurses, in any war in which the United States is or has been engaged and in connection with the American punitive expedition or other intervention campaign or trouble with the Republic of Mexico during the administration of President Woodrow Wilson; provided, such designated persons shall have attained the age of sixty-two years or become incapacitated for the duties of their office or position or employment. As amended L. 1944, c. 211, p. 749, § 1.’

‘43:4-2. Retirement of veterans; death in war; pensions. When an honorably discharged soldier, sailor or marine has or shall have been for twenty years continuously or in the aggregate in office, position or employment of this State or of a county, municipality or school district or board of education, except in the case of teachers in the public schools, the body, board or officer having power to appoint his successor in case of vacancy may, with his assent, order his retirement from such service, or he shall be retired on his own request. * * *’

R.S. 43:4-2 was amended by Laws of 1947, chapter 279, N.J.S.A. 43:4-2, by deletion of words ‘except in the case of teachers in the public schools.’

The prosecutor, who possessed the other qualifications necessary to make him eligible for retirement, had not spent twenty years in the service of the State. Eight years were spent in the service of the county of Hudson. The balance of the time, he was employed in the State service as an aide to the Chancellor. By adding together the time spent serving Hudson County to the time spent in the service of the State, prosecutor argues that he has the twenty years' service record required by the statute and therefore is eligible for retirement.

Respondent, on the other hand, contends that the statutory period of twenty years must all be spent in the service either of the State or of the county; and that the years spent serving the county may not be considered when, as here, the applicant seeks retirement from the State service.

The storm centre revolves about the use in the statute of the word ‘or’ in the phrase ‘employment of this State or of a county, municipality or school district or board of education.’ Ordinarily the word ‘or’ in a statute is to be considered a disjunctive particle indicating an alternative. There has been, however, laxity in the use of the words ‘or’ and the conjunction ‘and,’ so that the words are interchangeable and that one may be substituted for the other, if to do so is consistent with the legislative intent. Vol. 2, 3rd Ed., Sutherland, Statutory Construction, page 451. Refer to Standard Underground Cable Co. v. Attorney General, Err. and App., 1889, 46 N.J.Eq. 270, at page 277, 19 A. 733, 19 Am.St.Rep. 394; Baum v. Cooper, Sup., 1944, 131 N.J.L. 574, at page 575, 37 A.2d 830.

The following language from the case of State v. Murzda, Err. and App., 1936, 116 N.J.L. 219, at page 222, 183 A. 305, 307, is pertinent:

‘* * * The purpose of judicial interpretation is the discovery of ‘the true sense of the form of words which are used, * * * taking all its parts into consideration, and, if fairly possible, giving them all effect.’ [Inhabitants of] Orvil Tp. v. Borough of Woodcliff, 64 N.J.L. 286, 45 A. 686, 687. Whether the subject-matter of such interpretative inquiry be an agreement between parties, a statute, or a constitution, the object is ‘the thought which it expresses'. Newell v. People, 7 N.Y. 9, 97.’

The propriety of resorting to the legislative history of legislation to discover the meaning of ambiguous statutes is well recognized.

In Sutherland's work, at page 483, Section 5002, is set forth:

‘The history of the legislation is also an important aid. By history of the legislation, the courts mean the prior statutes on the same subject-the legal history of the statute.’

Let us then proceed to examine the pertinent legislation. The original Veterans' Pension Act was enacted in 1906 and can be found as Chapter 252 of the Laws of 1906. It granted a pension to honorably discharged Veterans of the Civil War. The title of that act read as follows:

‘An Act to permit the retirement, on pension, from public office or position, after forty years' continuous service therein, of honorably discharged Union soldiers, sailors and marines who served in the War of the Rebellion.’

The enacting clause provided insofar as relevant:

‘1. Whenever any honorably discharged Union Soldier, sailor or marine who served in the War of the Rebellion has or shall have been for forty years continuously in public office or position in this State, county, city, township or municipal service, it shall be lawful * * * to order his retirement from such service.’

‘3. Provision for all pensions arising under this act shall be made in the appropriation or tax levy for the department of the public service from which such person shall be so retired.’

This statute required a veteran to have served ‘for forty years continuously in public office or position in this State, county, city, township or municipal service.’ The title of the act and the body are both phrased in general and broad language clearly indicating an intent to give a Civil War Veteran who had forty years continuous service, a pension if he met the requirements of the act, without regard to whether or not the continous service was all with the State, county, city or municipality.

Section 3 of the 1906 statute is important. It places the burden for all such pensions on ‘the department of the public service from which such person shall be so retired.’ This shows a recognition on the part of the legislature that...