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McGarvey v. Board of Pension Commissioners

Decided: January 26, 1938.

JOHN MCGARVEY, PLAINTIFF-APPELLEE,
v.
BOARD OF PENSION COMMISSIONERS OF THE CITY OF HOBOKEN, DEFENDANT-APPELLANT



On appeal from the Supreme Court.

For the defendant-appellant, Horace L. Allen.

For the plaintiff-appellee, Milat & Gottschalk (Walter R. Gottschalk).

Bodine

The opinion of the court was delivered by

BODINE, J. The defendant appeals from a judgment in favor of the plaintiff who was appointed a patrolman in the police force of the city of Hoboken, January 23d, 1905. He was promoted to the rank of sergeant and so served until

July 21st, 1930, when he was demoted to the rank of patrolman. He served as such until August 15th, 1930. Application was then made, pursuant to Pamph. L. 1920, p. 324, for retirement on half pay. The application was as follows: "I do hereby make application to be retired from active duty as a patrolman in the Police Department, City of Hoboken, N.J. I was appointed to the Police Department January 23d, 1905, and having served as an active member since being appointed to the Police Department. I have now attained the age of 59 years. I make this application pursuant to the P.L. 1920, Chapter 160."

Having met the requirements of the statute, he was duly retired and for over a period of three years received one-half a patrolman's pay. The present action was brought for the difference between the half pay of a sergeant of police and that of a patrolman. The court below decided that the plaintiff was entitled to this difference by reason of Pamph. L. 1919, p. 587.

"This act provides that one who has 'honorably served' in either department for the 'required number of years to entitle' him 'to retire, or to be retired, on a pension,' shall not be deprived of his pension privileges 'because of any violation of the rules and regulations established for the government of such department, but he may be fined, reprimanded or discharged * * *.'" Plunkett v. Pension Commissioners of Hoboken, 113 N.J.L. 230, 234. This case was affirmed in 114 Id. 273, on the opinion below. Mr. Justice Heher in delivering the opinion of the Supreme Court said: "The act of 1920 contains no such provision. It is complete in itself, and contains a repealer of all acts inconsistent therewith. It would seem, therefore, that the legislative intent was to supersede, by this enactment, the act of 1919." This certainly was the rule of law governing the situation presented, and for the determination of this case it is unnecessary to say more. "When a general rule is provided by the legislature to cover an entire subject-matter, all earlier and different legislative rules touching such matter was to be discarded in favor of such later rule. Harrington v. Jersey City,

78 N.J.L. 610." Board of Education v. Tait, 81 N.J. Eq. 162.

In the present case, prosecutor had been demoted for a violation of the rules and regulations of the department.

The 1920 act, Pamph. L., p. 324, so far as pertinent, provides: "* * * any policeman * * * or members of the police * * * department * * *, who shall have honorably served in such police * * * department for a period of twenty years, and attained the age ...


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