For the prosecutor, Harry L. Schoen.
For the defendant, Charles F. Lynch and Salvatore D. Viviano.
Before Brogan, Chief Justice, and Justices Case and Perskie.
The opinion of the court was delivered by
PERSKIE, J. It is conceded that the single question requiring decision in this case is whether a child of a deceased policewoman is entitled to a pension in pursuance of chapter 160, Pamph. L. 1920, p. 324.
The facts which give rise to this question are not in dispute; they are stipulated and are as follows: On May 1st, 1928, Mary I. McGarry became a policewoman of the police department of the city of Paterson, New Jersey. On May 15th, 1928, she began to make payments into the fire and police pension fund of Paterson, and continued to make said payments until her death on November 15th, 1935. She died from causes other than injuries sustained in the performance of duty. On April 6th, 1931, she married one Victor Ghesquier and as a result of that marriage one daughter, Elizabeth
Ghesquier, was born. The daughter, now three years old, resides with her father, who is now and has been for the past ten years a probation officer of the county of Passaic, at an annual salary of $2,500. It is this child in whose behalf this application has been instituted to review the denial of her application for a monthly pension of $25.
Defendant seeks to justify its denial of prosecutor's right to a pension on the ground that the act makes no provision for such pension to children of deceased policewomen; that the right to pension of children under sixteen years of age applies only to children of a deceased policeman. In other words, legally stated, defendants' contention is that, as to the children of a policewoman, the act exhibits a "casus omissus" which this court cannot supply by judicial construction. If that were so, the point would be well taken. Cf. Public Service Co-ordinated Transport v. State Board of Tax Appeals, 115 N.J.L. 97 (particularly pages 103, 104); 178 A. 550.
But we do not, however, share the opinion that the pertinent provision of the act exhibits a "casus omissus." We think that the language of the act is plain and unambiguous. Let us recur to the act.
Section 1 thereof provides for the voluntary and compulsory ages of retirement, and further provides that "* * * the widow of every retired member of such police or fire department * * * shall so long as she remain unmarried receive a pension * * * not exceeding one thousand dollars for the use of herself and the children under sixteen years of age of her deceased husband, if any."
Section 3 thereof provides that "* * * the widow or children * * * of any member of the police or fire department having paid into the fund the full amount of his annual assessment or contributions, who shall have lost his life in the performance of his duty or who shall die from causes other than injuries received in the performance of duty, shall receive a pension * * * not exceeding one thousand dollars -- provided, ...