For the prosecutor, Alfred Brenner.
For the respondents, Charles E. McCraith, Jr., and Stephen F. Sladowski.
Before Justices Case, Bodine and Porter.
The opinion of the court was delivered by
CASE, J. The writ of certiorari brings up the record of the Board of Pension Commissioners of the City of Bayonne
with respect to the application of Jerry Laden, a policeman, for retirement and pension.
Under date of May 11th, 1944, Laden, prosecutor herein, addressed a letter to the board asking for the privilege of retiring from active duty and stating that "physical disabilities render me unable to perform the duties required in my capacity of patrolman." The letter did not so state, but the intention was to allege a permanent disability. The board had held its May meeting on May 10th, 1944. Its next meeting was on June 30th, 1944, and at that meeting there was placed before it (1) prosecutor's letter of May 11th, (2) a letter written to Mayor Daly (Director of Public Safety and also a member of the Board of Pension Commissioners) at the latter's instance by Dr. Magner, police surgeon, and (3) a letter from Dr. McCarthy written in prosecutor's behalf and presumably at his request. Dr. McCarthy's letter was a brief communication of six lines; Dr. Magner's was longer and went into more detail. Both tended to support prosecutor's assertion of disability. But none of the communications were sworn to and none of the writers -- not even the prosecutor -- was present. Indeed, Dr. Magner had died three days earlier. The board passed a motion that "the application be received and no action taken." Prosecutor contends that the action should have been to grant the application and that the failure to grant was illegal.
The statute (R.S. 43:16-2) is not precise in all of its directions; but it does clearly state that the board shall call to its assistance the aid of the police surgeon and that the president is authorized to administer oaths to the physicians or others. It was within the province of the board to require formality of proof, even to require the personal attendance of witnesses and the administration of the oath to them. It was entitled, if it desired, not only to an oral examination of the witnesses but to an opportunity for investigation of the claimant's case. The very recent death of the police surgeon and the consequent inability to question him or to require his attendance and the absence of the applicant and of anyone in his behalf were enough to justify, if not to make inevitable, the refusal to take official action at its meeting on June 30th.
There is no proof that the board was then negligent in its attention to the exigencies of prosecutor's application which on that day, for the first time, came to its official attention; and the presumption is to the contrary. We find no substance in the argument that it was the statutory duty of the board, on that day, to take official action granting retirement to prosecutor on pension. Prosecutor has endeavored to bolster the quantity and quality of the proof by depositions taken since the writ was allowed. But the medical testimony so taken was not before the board and may not properly be considered in determining whether the board, on the case presented to it, should have granted the pension. We find no error of act or omission on the part of the board on June 30th.
The board would have been bound ultimately to determine, by resolution, whether the applicant was entitled. The statute so requires. The motion as carried was not such a determination. If the prosecutor was entitled to any relief by way of prerogative writ at that stage and upon that issue, it would have been by way of writ of mandamus to compel a decision. But that procedure was not followed. A few days later, on July 6th, prosecutor requested that he be accorded a hearing. His request was at once acknowledged, and he was informed that he would be advised of the next meeting of the board. It was not the practice of the board to have, and it did not have, a meeting during July or August. The next meeting was held on September 1st at which time counsel for prosecutor attended. He requested, and was granted, a postponement upon the ground that prosecutor was unable to be present. The case came to a finality at a meeting on September 29th from which prosecutor was ...