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McCaw v. Ganser

Decided: August 8, 1939.

MARTHA J. MCCAW, PROSECUTRIX,
v.
ANDREW J. GANSER, E. STANLEY PLOYER, HENRY MEHRER, INDIVIDUALLY AND CONSTITUTING THE PENSION COMMISSION OF THE BOROUGH OF AUDUBON, COUNTY OF CAMDEN, STATE OF NEW JERSEY, RESPONDENTS



On certiorari.

For the prosecutrix, Albert S. Woodruff.

For the respondents, John Claud Simon.

Before Justices Parker, Bodine and Perskie.

Bodine

BODINE, J. William McCaw was a policeman in the borough of Audubon from May 1st, 1927, until December 31st, 1937, when he retired on pension because of permanent disability. The Pension act of 1920, chapter 160, Pamph. L., p. 324 (R.S. 1937, 43:16-1), adopted by referendum vote held in the borough in 1932, provided for a payment of two per cent. of a policeman's salary into a pension fund, and for retirement and pension after twenty years of service and arrival at the age of sixty-five years, or upon permanent disability resulting from injuries sustained in the line of duty. McCaw paid two per cent. of his salary into the pension fund as required by law.

By chapter 171, Pamph. L. 1935, p. 405, the Pension act of 1920 was amended. The amendment increased benefits and doubled payments to the fund. Under section 2 of this amendment, "any member of such police or fire department who shall have received permanent disability, shall be retired on a pension equal to one-half of his salary at the time of his retirement." It was no longer necessary to retirement that the permanent disability be received in the performance of the line of duty.

The Revised Statutes of 1937 combined the amendment of 1935 with the provisions of the general Pension act of 1920 and simplified the phraseology. Section 43:16-2 provides that, "Any member of such police or fire department who shall have received permanent disability shall be retired upon a pension equal to one-half of his salary at the time of his retirement." Section 43:16-5 provides that "there shall be deducted from every payment of salary to each member of the police and fire departments in such municipality four per cent. of the amount thereof if he entered the service on or before attaining the age of thirty-five years and if he enters the service after the age of thirty-five years, the percentage shall be increased to such an amount as shall be determined by the pension commission to correspond to the risk arising by his additional age." Section 43:16-7 further provides that, "The pension commission shall have control and management of the fund and of the retirement of members of the

departments, and may make all necessary rules and regulations with regard thereto, the same not inconsistent with this subtitle."

The percentages fixed by law were deducted from William McCaw's salary and the Revised Statutes were adopted prior to his retirement. When he retired, payments of pension were made to him in accordance with the law. Officer McCaw died April 6th, 1938, "from causes other than injuries received in the performance of duty." He was survived by Martha J. McCaw, the prosecutrix, his widow. They had been married on September 12th, 1908, and "before the date of his retirement and before he reached fifty years of age." At that time, the Revised Statutes of 1937, section 43:16-3, provided that "the widow of every retired member of the police or fire department, * * * who shall die from causes other than injuries, received in the performance of duty, shall * * * receive a pension, for so long as she remains unmarried, equal to one-half of the pay of her deceased husband at the time of his retirement, but not exceeding one thousand dollars," &c. All annual assessments and contributions exacted by law had been deducted from the salary paid to the deceased.

From the death of William McCaw, the pension commission paid to Martha J. McCaw, the prosecutrix, a pension equal to one-half of the pay of her deceased husband at the time of his retirement, up to and including September 30th, 1938.

On August 22d, 1938, the pension commission adopted a resolution providing that, "Beginning October 1st, 1938, the amount of pension to be paid to Mrs. Martha J. McCaw, widow of the late Officer William McCaw, shall be at the rate of five-twentieths of one-half salary at the time of his retirement." On October 31st, 1938, the pension commission forwarded to the prosecutrix a check for $16.25 for one month's pension, instead of $65, the monthly amount that had previously been paid her and paid her husband following his retirement and until his death. This reduced amount equaled five-twentieths of one-half ...


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