Decided: February 23, 1943.
THE STATE, EX REL. JOHN A. BERONIO, RELATOR,
PENSION COMMISSION OF THE CITY OF HOBOKEN, RESPONDENT
On writ of mandamus.
For the relator, Edward Stover.
For the respondent, John J. Fallon.
Before Brogan, Chief Justice, and Justices Parker and Porter.
[129 NJL Page 557]
The relator is and has been a policeman in the City of Hoboken continuously since September 1st, 1916. He is over fifty years of age. He has applied for retirement at half pay under the provision of N.J.S.A. 43:16-1. The respondent has failed to act upon his application which has been pending for several months. The statute, supra, provides that all policemen and firemen who have served honorably for a period of twenty years and reached the age of fifty years shall, on their own application, be retired on half pay. The respondent does not dispute relator's qualifications nor his legal right to retire but contends that for equitable principles in the sound exercise of discretion the retirement should be denied. It bases its position on the claim that by reason of the war emergency it may be unable to fill this vacancy, because it already has vacancies in the police and fire department for which suitable men cannot be found. It appears that relief from this situation has been sought from the legislature to
[129 NJL Page 558]
the end that discretionary power be given the pension commissions during the period of the war in the retirement of policemen and firemen.
In the absence of such legislation under the clear mandate of the statute, supra, relator has a right to retirement and there is no discretionary right in the respondent to deny the application or to withhold action thereon.
We conclude that the relator's right to a peremptory writ of mandamus is clear and it will be issued.