On application for writ of mandamus.
For the applicant, Emanuel Wagner.
For the respondent, Raymond A. Leahy.
Before Justice Case, sitting alone, pursuant to the statute.
The opinion of the court was delivered by
CASE, J. Petitioner is a practicing physician. He was appointed physician to the police department of the City of Elizabeth on February 11th, 1920, and continuously since then has held the position and honorably performed the services and received the emoluments thereof. He is now past the age of fifty years, has made application for retirement on half pay and has been refused by the Police and Fire Departments Pension Commission of the City of Elizabeth. The parties have come before me on this application, have agreed upon this procedure and have stipulated that all of the allegations in the petition are true except any allegation that Gerendasy, in becoming police physician, thereby became a "member" of the police department. It is further stipulated that "if the court finds the relator to be a member of the police department he is entitled to a writ of mandamus directing
the commission to retire him on pension." It is the conception of both parties that if it results from the facts that Gerendasy is to be considered a member of the department he is entitled to be retired on pension.
The pertinent statute is R.S. 43:16-1 (source, chapter 160, Pamph. L. 1920 (at p. 324): "* * * any policeman or fireman or member of the police or fire department * * * who shall have served honorably in the police or fire department for a period of twenty years, and reached the age of fifty years, shall, on his own application, be retired on half pay. * * *."
The voters of the City of Elizabeth adopted, at a general election held on November 3d, 1914, the provision of chapter 95, Pamph. L. 1909. Pursuant thereto, on or before January 1st, 1915, a Board of Police Commissioners was appointed, organized and entered upon its duties, inter alia, of appointing and dismissing employees, officers and members of the police department. On November 4th, 1913, the voters of the city adopted the provisions of chapter 156, Pamph. L. 1908, which brought the employees of the city within the application of the "Civil Service Act." There came a vacancy in the position of police department physician and the Civil Service Commission thereupon, February 11th, 1920, notified the Board of Police Commissioners that the position had been classified in the non-competitive class. On that day the board adopted a resolution appointing Gerendasy "as police physician to the police department at a salary of $500 per annum, to take effect from February 1st, 1920." The Civil Service Commission approved the appointment, and Gerendasy's service has been continuous on that appointment, with increases in compensation.
Industrious search has failed to disclose the then extant ordinance or other action by the Board of Police Commissioners establishing the police department. That particular record appears to have been lost or destroyed and its absence is satisfactorily explained. But there are other records which sufficiently establish Gerendasy's status and, inferentially, that there was an ordinance which included the police physician as a member of the department. On January 8th,
1920, a salary resolution was passed entitled "resolution respecting the salaries of members of the Elizabeth Police Department," providing that "the members hereinafter mentioned shall receive the following sums as compensation for their services" and thereupon fixing the minimum and maximum amounts for all members of the department and in the following order: Chief of police, captains of police, detective sergeants, detectives, sergeants, license sergeant, patrolmen (of three separate grads), matron, police physician, secretary of the board. On January 12th, 1922, and January 8th, 1925, ...