For the relator, Parnell & Krueger (Joseph Coult, of counsel).
For the respondents, Gilhooly & Yauch (John H. Yauch, Jr., of counsel).
For the City of Newark, amicus curiae, Philip J. Schotland (Thomas M. Kane, of counsel).
Before Brogan, Chief Justice, and Justices Donges and Perskie.
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. The instant application is for a peremptory mandamus. The record discloses an alternative writ, a return thereto, and a demurrer. The relator herein, John W. Judson, had been employed by the City of Newark from April, 1916, to December 31st, 1942, as chief accountant in the Department of Public Works. In 1917 he became a member of the Newark Board of Works Pension Association and continued as such member in good standing until his services to the City of Newark were terminated. On November 4th, 1942, by resolution of the Board of Commissioners
of the City of Newark, Mr. Judson was retired from the city's service (effective as of December 31st, 1942) and was placed on pension under the statute, R.S. 43:12-1. The pension amounts to $3,750 each year, in compliance with the statute, supra, and represents one-half of the salary he was receiving at the time of his retirement.
On February 18th, 1943, the relator made application to the Newark Board of Works Pension Association for a second pension under the statute, R.S. 43:19-9-a, and at the time of the allowance of the alternative writ his claim was that that pension board had neglected and refused to take any action on his application for pension, whereupon an alternative writ was awarded him. Thereafter, however, the Newark Board of Pension Works Association, through its trustees, passed on his application and rejected it, its chief reason being that Mr. Judson already enjoyed a pension under the statute first mentioned, R.S. 43:12-1. In the return, however, the respondent asserts that as a matter of fact the relator did not make application to the employer, the Board of Street and Water Commissioners, or its successors, according to the requirement of the statute, that he be retired and denies that the relator is entitled to be pensioned under the statute upon which he places reliance, namely, R.S. 43:19-9-A. The respondent further says that by the retirement of Mr. Judson at the end of the year 1942, his employment then and there had been terminated and that the Director of Public Works in Newark thereafter had no power to order his retirement under the statute upon which the relator presently relies. The respondent further says that when Judson was involuntarily retired his full pension was awarded him and has since been paid in semi-monthly installments and that the statute now invoked by the relator does not contemplate the payment of two pensions which in this instance would equal the entire salary he had been receiving before retirement. Further, that by accepting the benefits of the Pension Act (R.S. 43:12-1) he waived what rights he had under the statute which he invokes (R.S. 43:19-9-a); and that since he rendered but one service to the city he is entitled to only one remuneration by way of pension.
The relator demurred to the answer, thus conceding every fact allegation which is well pleaded and raising a question of law. In this posture we think the respondent is entitled to judgment.
The statute under which the relator was actually retired (R.S. 43:12-1) might be called an involuntary retirement statute even though it is available for voluntary retirement as well. Its provision is that any person who has been continuously in the employ of any city for a period of twenty-five years and has reached the age of seventy years * * * may retire or be retired at any time thereafter. The pension is fixed at one-half of the amount such employee was receiving as salary at the time of retirement. Mr. Judson had served for more than twenty-five years and had reached the age of seventy. Contrary to his wish in the matter, apparently, he was retired. The statute upon which he bases his present application (R.S. 43:19-9-a) provides, so far as pertinent, that in any city of the first class all members of the pension corporation formed from the employees of the board of street and water commissioners, who shall have served in the employ of the city ...