On appeal from a judgment of the Supreme Court, whose opinion is reported in 129 N.J.L. 557.
For the appellant, John J. Fallon.
For the appellee, Edward Stover.
The opinion of the court was delivered by
HEHER, J. The appeal is from a judgment awarding a peremptory writ of mandamus commanding the appellant Pension Commission to "act favorably" upon the appellee's application for retirement from the Hoboken police force on pension under R.S. 43:16-1.
The appellee moves to dismiss the appeal upon the grounds (1) that "no appeal lies from the granting of a writ of mandamus, which is a matter of discretion;" and (2) the questions raised are moot since the appellant "has retired the relator, and is paying him his pension."
Issues of law and fact were raised by an alternative writ of mandamus, a return thereto, and a plea to the return. Depositions were taken; and, after hearing, there was judgment that the matters and things set forth in the alternative writ are "sufficient in law" to sustain relator's action, and that the return be dismissed and a peremptory mandamus issued accordingly. Thus, there was a course of pleading as in personal actions, presenting the rights of the parties for adjudication; and the resultant judgment settling the rights thereby put in litigation is final and conclusive, and therefore appealable according to the principles of the common law. The modern practice likens the application for a mandamus to a personal action and the alternative writ to a declaration therein. Layton v. State, 28 N.J.L. 575; Silverthorne v. Warren Railroad Co., 33 Id. 173; Kenny v. Hudspeth, 59 Id. 504; Morris & Cummings Dredging Co. v. Bayonne, 76 Id. 573; Hamilton Township v. Mercer County Traction Co., 89 Id. 163; Browne v. King, 91 Id. 317; Trinkle v. Donnelly, 98 Id. 298; Reed v. Board of County Canvassers, 119 Id. 115; Roberts v. Hetrick, 125 Id. 633; Strobel Construction Co. v. Sterner, 128 Id. 379. R.S. 2:83-11 is merely declaratory of this common law principle. It is not determinative of the question that the award of this remedy rests in judicial discretion. Of this, more hereafter.
And the second ground for dismissal is equally untenable. Submission to the mandate of the writ was pursuant to a resolution adopted by the appellant commission reciting its decision to take an appeal from the judgment and advice given by the municipal attorney that the appeal would not act as a supersedeas. In these circumstances, there was no waiver or estoppel by acts or course of conduct inconsistent with the right of appeal. This is a right favored in the law; and it will not be deemed waived except for compelling reasons. Intent is an ingredient of waiver. The course taken here did not constitute a recognition of the validity of the judgment. Appellant conceived it to be its duty to satisfy the command of the writ, and made known that compliance was not to be deemed an abandonment of its right of appeal.
It is the prevailing rule that even the voluntary payment, performance or satisfaction of a judgment, unless made in compromise or settlement of the controversy, does not ex necessitate constitute a waiver of the right of appeal, especially where repayment or restitution may be enforced, or the effect of compliance may be otherwise undone, in the event of a reversal. 4 C.J.S. 409, et seq. Moreover, the subject-matter of the action is of public concern.
The motion to dismiss is accordingly denied.
Conceding that the appellee has a "legal right" to retirement, in that he has satisfied all the statutory prerequisites, appellant nevertheless insists that equitable principles should have moved the Supreme Court to deny the motion for a mandamus.
Section 43:16-7 clothes the local pension commissions with the "control and management" of the pension fund constituted by the statute "and of the retirement of members of the departments," and with authority to "make all necessary rules and regulations with regard thereto, * * * not inconsistent" with the terms of the act; and it is said that these commissions have a measure of discretion which was properly exercised here, since the appellee "is sound in body and mind" and public policy ordains that in the emergency of ...