Walter v. Police and Fire Pension Comm'n of City of Trenton

• Decision Date: 05 April 1938
• Docket Number: No. 262.,262.
• Citation: 198 A. 383,120 N.J.L. 39
• Parties: WALTER v. POLICE AND FIRE PENSION COMMISSION OF CITY OF TRENTON.
• Court: New Jersey Supreme Court

198 A. 383

120 N.J.L. 39

WALTER

v. POLICE AND FIRE PENSION COMMISSION OF CITY OF TRENTON.

No. 262.

Supreme Court of New Jersey.

April 5, 1938.

Syllabus by the Court.

1. A police officer forfeits his right to a pension if he is convicted of malfeasance in office even though he has become eligible for the pension by reason of his having served 20 years and having attained the age of 50 years.

2. In order for a police officer to be eligible for retirement and pension under R.S.1937, 43:16-1 et seq., Comp.St.Supps. § *136—3900L(1) et seq., P.L.1920, c. 160, p. 324, as amended, he must have been a member of the police department at the time the application was made.

Application for certiorari by William P. Walter against the Police and Fire Pension Commission of the city of Trenton. To review the action of the commission in denying prosecutor a pension for service in the police department of the city of Trenton.

Application denied.

Argued January term, 1938, before BODINE and PERSKIE, JJ.

Joseph A. Murphy, of Trenton (Louis B. Levine, of Trenton, of counsel), for prosecutor. Sidney Goldmann, of Trenton, for respondent.

PERSKIE, Justice.

Does a police officer, who continues in service after having served 20 years and after having attained the age of 50 years, forfeit his right to a pension under 2 Rev.Stat.1937, 43:16-1 et seq., Comp.St. Supps. § *136—3900L(1) et seq., P.L.1920, c. 160, p. 324, as amended, by reason of his conviction for malfeasance in office, the malfeasance having occurred after the police officer had become eligible for the pension? We think so.

On January 6, 1904, prosecutor was appointed to the police department of the city of Trenton. On the 25th day of February, 1930, he had attained the age of 50 years and had served honorably for 20 years. During this service 2 per centum of every payment of his salary had been deducted and paid by the Treasurer of the city of Trenton into the police and fire pension fund. Thus he became eligible for retirement and pension. 2 Rev.Stat., supra, 43:16-1 et seq., Comp.St.Supps. § *136—3900L(1) et seq., P.L.1920, c. 160, p. 324, as amended. Nonetheless, prosecutor made no application for a pension, but continued to serve as a member of the police department, and the 2 per centum deduction from his salary also continued. On March 20, 1935, he was notified that his office was forfeited pursuant to the provisions of 1 Rev.Stat., supra, 2:160-9, Comp.St.Supp. 1924, § 52—214b, P.L.1913, c. 74, § 1, p. 116, because he had been convicted upon an indictment charging him with malfeasance in office. See State v. Walter, 186 A. 429, 14 N.J.Misc. 547, affirmed 117 N.J.L. 547, 189 A. 621.

Some two years later, on March 15, 1937, prosecutor applied in writing for a pension to the police and fire pension commission of the city of Trenton. This application was rejected on April 22, 1937, upon the ground that the applicant had been dismissed and was not a member of the police department when the application was made. We are told that prosecutor then applied to Mr. Justice Trenchard for a writ of certiorari to review the action of the pension commission. This application was denied on October 26, 1937, and it is now renewed before us.

First. Passing over the question of laches upon which the denial of the application might well be rested, we are entirely satisfied that it should be denied on the merits. It is clear that, under 2 Rev. Stat. 43:16-1 et seq., Comp.St.Supps. § *136—3900L(1) et seq, P.L.1920, c. 160, p. 324, as amended, in order for an officer to retire with pension, he must have been a member of the police department at...