Salley v. Firemen's and Policemen's Pension Fund Comm'n

• Decision Date: 13 February 1940
• Docket Number: No. 408.,408.
• Citation: 124 N.J.L. 79,11 A.2d 244
• Parties: SALLEY v. FIREMEN'S AND POLICEMEN'S PENSION FUND COMMISSION et al.
• Court: New Jersey Supreme Court

11 A.2d 244

124 N.J.L. 79

SALLEY

v. FIREMEN'S AND POLICEMEN'S PENSION FUND COMMISSION et al.

No. 408.

Supreme Court of New Jersey.

Feb. 13, 1940.

Syllabus by the Court.

1. Chapter 221 of P.L.1938, N.J.S.A. 43:1-2, applies to installment payments of a pension due after the act becomes effective and where the pension had been awarded prior to the effective date of the act of 1938 and was awarded pursuant to and was governed by Chap. 160, P.L.1920. N.J.S.A. 43:16-1 et seq.

2.Where there is no contractual relationship between the retired policeman, on the one hand, and the Pension Commission and the City or State, upon the other, the retired policeman's rights are governed by the acts of the legislature of the State.

3.It is the rule in this State that compulsory deductions from salaries of governmental employees by the authority of the government for the support of a pension fund create no contractual or vested right between such employees and the government, and neither such employees nor those claiming under them have any rights except their claims be based upon and within the statute governing the fund.

4. In determining whether Chapter 160 of P.L.1920 tenders a contract to a citizen it is of first importance to examine the language of the statute. The presumption is that such a law is not intended to create private contractual or vested rights, but merely declares a policy to be pursued until the legislature shall ordain otherwise. He who asserts the creation of a contract with the State in such a case has the burden of overcoming the presumption. If, upon a construction of the statute it is found that the payments are gratuities involving no agreement of the parties, the grant of them creates no vested right.

5. Under the stipulated facts, and where no contractual obligation exists with respect to future installment payments of pension, the pensioner could not, in view of Chap. 221 of P.L.1938, legally assign such installments to plaintiff during pensioner's confinement in a penal institution, nor could he by any act of his own assign to the plaintiff any right to preclude the legislature of the State from enacting laws with respect to his future installments of pension.

Appeal from District Court, of Bayonne.

Suit by Edward M. Salley against the Firemen's and Policemen's Pension Fund Commission and the City of Jersey City to recover installment payments allegedly due the plaintiff's assignor from the Firemen's and Policemen's Pension Fund of the City of Jersey City. From a judgment in favor of the plaintiff, the defendants appeal.

Case remitted, with instructions to enter judgment for the defendants.

Argued October term, 1939, before TRENCHARD, CASE, and HEHER, JJ.

James A. Hamill, of Jersey City (Charles A. Rooney, of Jersey City, of counsel), for defendants-appellants.

Milton, McNulty & Angelli, of Jersey City, for plaintiff-appellee.

TRENCHARD, Justice.

This case was tried below and is submitted here on a stipulation of facts in words and figures as follows: "On June 4th, 1936, by assignment in writing, George DeForge assigned his rights in, and to payments for 44 consecutive months, commencing July 1st, 1936, which may have been due subsequent to said assignment from the Firemen's and Policemen's Pension Fund of the City of Jersey City. Said George DeForge became a member of the Police Force of the City of Jersey City on July 16, 1915, and served therein until his retirement for disability not arising out of line of duty on September 25th, 1933; during his service in the police department said George DeForge made the usual contributions to the Firemen's and Policemen's Pension Fund of the city, and at the time of his retirement on September 25th, 1933, he was awarded a pension at the rate of $1500.00 per annum, payable monthly at $125.00 per month on the first of each month. This pension was paid pursuant to the provisions of Chapter 160, P.L.1920, N.J.S.A. 43:16-1 et seq., under which the Firemen's and Policemen's Pension Fund Commission was created; deductions were made from the pension payments at the rate of 4% for dependents, so the net payment was made to the said George DeForge of $120.00 per month; on November 26th, 1935, the said George DeForge was indicted by the grand jury of Hudson County on a charge of murder in the first degree, there being three indictments returned of first degree murder in connection with the deaths of Marie DeForge, James Deveny and Philip Missingharter; The said George DeForge retained the plaintiff herein, Edward M. Salley, as his attorney, and on June 1st, 1936, said George DeForge pleaded non vult to a charge of murder in connection with the indictment returned against him for the death of Marie DeForge and was sentenced by Judge Thomas F. Meaney, sitting in the Court of Oyer and Terminer of Hudson County to be confined to State's Prison for the rest of his natural life; the said George DeForge was forthwith and still is confined in the State Prison at Trenton; notice of the assignment to the plaintiff was given to the Firemen's and Policemen's Pension Fund Commission on the 4th day of June, 1936, and thereafter monthly payments of the pension moneys were made to the plaintiff; the last payment was made on September 1st, 1938, and subsequent to that date no further payments were made because of the provisions of Chapter 221 of the Laws of 1938, page 516, N.J.S.A. 43:1-2, which is entitled An Act to prohibit the payment of any pension or subsidy by this State or by any municipality or school district of this State to any person for the period during which he is confined in a penal institution as a result of conviction of a crime involving moral turpitude, and supplementing subtitle one of Title 43 of the Revised Statutes'."

Such is the full extent of the stipulation as to the facts upon which the case was tried and is here presented.

In this posture of affairs the plaintiff instituted this suit in the district court to recover for the installment payments alleged to be due on the first days of October, November and December, 1938, and the first day of January, 1939, at the rate of $120 per month, all aggregating the sum of $480. The court, sitting without a jury, rendered judgment for the plaintiff for the full amount for which he sued.

The defendants' appeal is based upon the contention that the action was barred by the statute P.L.1938, Chap. 221, page 516.

We think that defendants' contention is sound.

The statute of 1938 became effective May 25, 1938, and provides as follows: "No pension or subsidy shall be paid by this State or by any municipality or school district of this State to any person for the period during which he is confined in a penal institution as a result of conviction of a crime involving moral turpitude, and such person shall lose all right to so much pension or subsidy as he would receive or be entitled to receive had he not been so...