Turner v. Passaic Pension Comm'n

• Decision Date: 06 December 1932
• Citation: 163 A. 282
• Parties: TURNER v. PASSAIC PENSION COMMISSION et al.
• Court: New Jersey Supreme Court

163 A. 282

TURNER

v. PASSAIC PENSION COMMISSION et al.

Supreme Court of New Jersey.

Dec. 6, 1932.

Certiorari proceeding by Benjamin F. Turner against the Passaic Pension Commission and another.

Writ dismissed.

Argued before BROGAN, J., sitting alone pursuant to the statute.

Weinberger & Weinberger, of Passaic, for prosecutor.

Thomas B. Duffy, of Passaic, for defendants.

BROGAN, J.

The argument on the return of this writ of certiorari has been brought on and submitted to me for determination as a single justice of the Supreme Court. The facts in the case are as follows:

Benjamin F. Turner, who prosecutes this writ, is a city commissioner of the city of Passaic, which is governed by the Walsh Act (or Commission Government Act, as it is popularly known [Comp. St. Supp. § **136—1 et seq.]), and is the director of parks and public improvements. He was elected to the governing body for a term of four years on May 12, 1931.

Prior thereto and for some years he had been a member of the police department of the city of Passaic, having been patrolman, sergeant, and, finally, captain of detectives. As such he had also been a member in good standing of the pension fund for members of the police department in the city of Passaic, regularly established under statutory provision, by authority of chapter 72, P. L. 1911, as amended (Comp. St. Supp. § *136—3900 E (1) et seq.); chapter 160, P. L. 1920, as amended (Comp. St. Supp. § *136—3900 L (1) et seq.). Under these statutes, the members of the police and fire departments make contributions to the pension fund commission; the same being deducted regularly from their salaries. The particular municipality, too, makes yearly contribution to the pension fund of an amount equal to 4 per centum of the total salary roll of the police and fire departments.

Now the said Turner resigned as captain of detectives, and on January 1, 1931, was voted a pension by said pension fund commission of $1,550, to which he was lawfully entitled, and which pension was paid to Turner up to July 1, 1932. Payments thereafter were denied him by the pension fund commission, which passed a resolution to the effect that no further pension checks would be issued to Benjamin F. Turner, a commissioner of the city of Passaic, during the term for which he was elected, as long as he receives checks from the city of Passaic for his services as a member of the governing body. The reason for refusing him the pension checks is based on a statute passed by the Legislature of this state on June 8, 1932 (chapter 259, Laws 1932 [Comp. St. Supp. § *192—115 et seq.]) entitled, "An Act concerning the State, counties, cities, towns, townships, boroughs, villages, and other municipalities of this State and regulating public employment therein," the pertinent part of which statute is as follows:

"Any person who at the time of the passage of this act is receiving or who shall hereafter be entitled to receive any pension or subsidy from the State or from any county, city, town, township, borough, village, or other municipality, including school districts, shall from and after the passage hereof be ineligible to hold any public position or employment in the State or in any county, city, town, township, borough, village or other municipality or school district, unless he shall have previously notified and authorized the proper authorities of the State or of the county, city, town, township, borough, village or other municipality or school district from which he is receiving or entitled to receive such pension that, for the duration of the term of office of such public position or employment his pension shall remain unpaid. * * * The officers of such respective governing bodies and any other person who shall violate any of the provisions hereof shall be guilty of a misdemeanor." Sections 1, 4 (Comp. St. Supp. §§ *192—115, *192—118). '

The said Benjamin F. Turner, therefore, prosecutes this writ of certiorari, reviewing the action of the pension fund in denying him his pension checks, and assigns several reasons, attacking the action of the pension fund as illegal, which are as follows:

Chapter 259, P. L. 1932, is unconstitutional as far as prosecutor is concerned because it impairs the obligation of a contract and interferes with a vested right as guaranteed by article 4, par. 3, § 7, of the Constitution. Other reasons are assigned but, since they are not argued in the prosecutor's brief, they must be considered as abandoned. Sargeant Bros. v. Brancati, 107 N. J. Law, 84, 151 A. 843.

In support of his position, it is strenuously argued on behalf of the prosecutor that he has a complete vested right to a pension, having complied with all the conditions required to entitle him thereto, and that any legislat ion interfering with such rights comes under the constitutional ban, article 4, § 7, par. 3, of the New Jersey Constitution, which is as follows: "The legislature shall not pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or depriving a party of any remedy for enforcing a contract which existed when the contract was made"—citing Baldwin v. Flagg, 43 N. J. Law, 495, and Ball v. Board of Trustees, 71 N. J. Law, 64, 58 A. 111.

The case first cited, Baldwin v. Flagg, needs no discussion here. It is one of the earlier and leading cases on the question of legislation interfering with the obligation of a contract, but, as I view the case before me, this authority has no application to the issue here presented.

The case of Ball v. Board of Trustees, however, is worthy of mention. There the pension fund was made up from the contributions of the teachers themselves, who, under legislative sanction, were privileged after twenty years of service and incapacitation to be retired and receive an annuity...