Plunkett v. Bd. of Pension Com'rs of City of Hoboken, 218.

• Court: United States State Supreme Court (New Jersey)
• Writing for the Court: HEHER, Justice
• Citation: 173 A. 923
• Parties: PLUNKETT v. BOARD OF PENSION COM'RS OF CITY OF HOBOKEN.
• Docket Number: No. 218.,218.
• Decision Date: 24 July 1934

173 A. 923

PLUNKETT
v.
BOARD OF PENSION COM'RS OF CITY OF HOBOKEN.

No. 218.

Supreme Court of New Jersey.

July 24, 1934.

173 A. 923

Application by Thomas P. Plunkett for a rule to show cause why a writ of certiorari should not issue to review a resolution of the Board of Pension Commissioners of the City of Hoboken, N. J., denying applicant's petition for a pension.

Judgment for defendant.

Argued January term, 1934, before BROGAN, C. J., and TRENCHARD and HEHER, JJ.

Lum, Tamblyn & Colyer and Charles E. McCraith, Jr., all of Newark, for prosecutor.

Horace L. Allen, of Hoboken, for defendant.

HEHER, Justice.

The applicant invokes the jurisdiction of this court to review, by certiorari, a resolution of the board of pension commissioners of the city of Hoboken, denying his petition for a pension from the fund created under the provisions of the act establishing a system for the retirement of policemen and firemen in the several municipalities of this state. P. L. 1920, p. 324 (Comp. St. Supp. § *136— 3900L(1) et seq.).

He rendered continuous service, as a member of the fire department of the city of Hoboken, from May 1, 1904, to January 25, 1933, when he confessed his guilt of charges of misconduct, in violation of departmental rules and regulations, one of which, it is stipulated, "embraces embezzlement by him of monies of the Hoboken Firemen's Relief Association," and was thereupon dismissed from the service. The validity of his dismissal is not at issue. On February 23, 1933, after his dismissal, he presented to the pension commission, his application "for retirement on half pay by reason of his having attained the age of fifty years and having honorably served for a period of twenty years in the said Hoboken Fire Department." Concededly, he reached the voluntary retirement age of fifty years on August 28, 1925.

The question of the right of one of the statutory class, so circumstanced, to a pension is presented for the first time in this jurisdiction, and we are of opinion that it must be resolved in the negative. It is essentially one of statutory construction. The act provides (section 1 [Comp. St Supp. § *136—3900L(1)]) that any member of the police or fire department, in a municipality where its provisions have become effective, "who shall have honorably served in such police or fire department for a period of twenty years, and attained the age of fifty, shall, upon his own application, be retired on half pay, and any member of any such police or fire department who shall have honorably served for a period of twenty years and attained the age of sixty-five years shall be retired on half pay. * * * "

The legislative purpose is not open to doubt. The statutory scheme is to make retirement

173 A. 924

compulsory at the age of sixty-five years, and optional with the member after he has reached the age of fifty years, unless he shall sooner sustain "permanent disability in the performance of his duty," in which event he shall, upon the certificate of the departmental surgeon or physician, or other physician designated by the pension commission, be retired upon the prescribed pension. "Retirement" connotes membership surrendered or lost at the instant of time it becomes effective. Moreover,...