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Kelly v. Kearins

Decided: December 28, 1944.

JOSEPH KELLY, RELATOR,
v.
MICHAEL KEARINS ET AL., RESPONDENTS



On mandamus.

For the relator, Edward Stover.

For the respondents, John J. Fallon.

Before Brogan, Chief Justice, and Justices Donges and Perskie.

Perskie

The opinion of the court was delivered by

PERSKIE, J. The question for decision is the propriety of respondents' denial of relator's asserted right to be retired on pension pursuant to the Veterans Act, R.S. 43:4-2, et seq., as amended by Pamph. L. 1943, ch. 87, and Pamph. L. 1944, ch. 191.

The pertinent statutory provisions as lastly amended and upon which relator relies provide as follows:

R.S. 43:4-2. "When an honorably discharged soldier, sailor or marine has or shall have been for twenty years continuously or in the aggregate in office, position or employment of this State or of a county, municipality or school district or board of education, except in the case of teachers in the public schools, the body, board or officer having power to appoint his successor in case of vacancy, may, with his assent, order his retirement from such service, or he shall be retired on his own request."

R.S. 43:4-3. "A person so retired shall be entitled, for and during his natural life, to receive by way of pension, one half of the compensation then being received by him for his service, which shall be paid in the same way and in the same installments as his compensation has been payable. * * *"

"In case of retirement with pension from office or position under any other law of this state, the persons retiring shall waive either his pension under that law or his pension under this article."

R.S. 43:4-4. "Provisions for all pensions arising under this article shall be made in the appropriation or tax levy for the department of the public service from which the person shall be retired. * * *"

The facts in support of the relator's asserted right are not in dispute. They disclose that relator, Joseph Kelly, is an honorably discharged veteran of the First World War. He was appointed on April 17th, 1924, and is a patrolman in good standing, in the police ...


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