Pangburn v. Ocean City Police

• Decision Date: 03 February 1948
• Docket Number: No. 226.,226.
• Citation: 56 A.2d 914,136 N.J.L. 501
• Parties: PANGBURN v. OCEAN CITY POLICE AND FIREMEN'S PENSION FUND COMMISSION.
• Court: New Jersey Supreme Court

136 N.J.L. 501

56 A.2d 914

PANGBURN

v.OCEAN CITY POLICE AND FIREMEN'S PENSION FUND COMMISSION.

No. 226.

Supreme Court of New Jersey.

Feb. 3, 1948.

Certiorari by Matthew E. Pangburn to review action of Ocean City Police and Firemen's Pension Fund Commission in denying prosecutor's application to be retired from police department on pension.

Judgment for prosecutor.

EASTWOOD, J., dissenting.

May term, 1947, before DONGES, COLIE, and EASTWOOD, JJ.

Albert M. Ash, of Ocean City, for prosecutor.

John E. Boswell, of Ocean City, for defendant.

DONGES, Justice.

Certiorari was allowed to review the action of the defendant in denying prosecutor's application to be retired from the police department on pension.

Prosecutor was employed as a member of the police department of the City of Ocean City on June 9, 1924, as a patrolman. He reported for duty on that day and continued such service until June 13, 1946. On April 24, 1944, he applied for pension alleging his right to pension by reason of having served ‘for a period of 20 years and having attained the age of 50 years, to wit, the age of 53 years.’ On May 17, 1944, the application was denied by the Police and Firemen's Pension Fund. On February 1, 1946, prosecutor made application for retirement on pension. In each instance, prosecutor based his application on Chapter 160 of the laws of 1920, R.S. 43:16-1 N.J.S.A.

The defendant urges that prosecutor is not entitled to retirement because of several suspensions during the years of his service. The record discloses that he was suspended on five occasions. Four suspensions were for short periods, varying from two days as a minimum and fifteen days as a maximum suspension. The fifth suspension appears to have been for an indefinite time, and appears to have run from February 16, 1929, to July, 1931. The municipal commission, on the advice of the city solicitor, denied the application on the ground that prosecutor had not honorably served the twenty years required by the statute. There is no question that he had reached the required age.

The record does not disclose the reasons for the several suspensions. No claim is made that any of the grounds for suspension involved charges preferred against prosecutor or that any offense involving moral turpitude was alleged.

As stated, the record is silent as to the cause for the disciplinary actions resulting in the various suspensions suffered by the prosecutor. In any event, they were not of such serious character as to call for the dismissal of prosecutor, since he was re-instated each time. When he was re-instated after the long suspension it was upon the occasion of the withdrawal from the service of a man who was sick, which suggests that the prolonged suspension might have been occasioned, in part at least, by lack of need for the services of prosecutor.

From the scanty and inadequate record it cannot be determined that prosecutor was guilty of conduct rendering him guilty of dishonorable service. He had been a member of the police force for a period of twenty years when the act of 1944 became effective. Prima facie he was entitled to a pension and the burden of proving dishonorable service rests upon the defendant. The statute clearly indicates that the policy, as set by the legislature, is not to consider conduct in violation of departmental rules as amounting to dishonorable conduct, because R.S. 43:11-1, N.J.S.A., provides that such violations, although punishable by fine, reprimand or dismissal, shall not deprive a member of the police or fire department of his pension privileges. Plunkett v. Board of Pension Commissioners of the City of Hoboken, 113 N.J.L. 230, 173 A. 923; affirmed 114 N.J.L. 273, 176 A. 341. It follows, therefore, that there being no showing of dishonorable conduct, prosecutor's right to pension cannot be denied on that ground.

R.S. 43:11-2, N.J.S.A., provides: ‘When a member of the police department in any municipality has been removed from employment therein without charges being preferred against him, or has been removed from employment by reason of the disbanding of a police department, and has subsequently been reinstated, the time elapsed between such removal and reinstatement shall be computed as time in actual service in determining his right to retirement from service in the department.’ It would appear, therefore, in the absence of disclosure of any charges and hearings, or evidence of any conduct involving moral turpitude or dishonor, that this act applies. The prosecutor having presented a prima facie case, the burden is upon the defendant to overcome the existent presumptions. As was said in Murley v. Township of Raritan, 117 N.J.L. 357, 188 A. 739, 740, ‘The officer was not removed from office, but suspended in its exercise. He is still a policeman holding his office subject to the suspension.’

We conclude, therefore, that prosecutor showed twenty years of service within the statutory requirements, nothing appears to the contrary, and prosecutor is entitled to judgment. The action of the defendant in denying prosecutor's claim for pension is hereby set aside, with costs.

EASTWOOD, Justice (dissenting).

I have concluded that I cannot agree with the opinion of the majority in this case on the question of the legal effect of the four suspensions imposed upon the prosecutor, constituting a portion of the time embraced in prosecutor's claim for his right to pension. My reasons for reaching this conclusion are stated as follows:

Prosecutor, Matthew E. Pangburn, seeks to review by certiorari the action of the Ocean City Police and Firemen's Pension Fund Commission in denying his application to be retired on pension. He first applied for a pension on April 24, 1944 and again on February 1, 1946. For the purpose of decision the latter application of February 1, 1946 is the only application that need be considered.

Pangburn was originally employed as a member of the Police Department of the City of Ocean City on June 9, 1924 as a patrolman and reported for duty on that date. It appears from the record that from the time of Pangburn's original employment until July 1, 1944, he was suspended from active duty on five separate occasions. Four of these suspensions are for comparatively short periods of two to...