For the applicant, Andrew O. Wittreich.
For respondents, Daniel T. O'Regan and Thomas J. Armstrong.
Before Justices Case, Bodine and Perskie.
The opinion of the court was delivered by
CASE, J. The application is for a peremptory writ of mandamus or, in the alternative, for a rule to show cause why such a writ should not issue.
The application seeks to compel a reimbursement to the applicant of all payments made by him as a member of the Hudson County Boulevard police into the pension fund and is based solely upon R.S. 43:9-6.1, passed as chapter 399, Pamph. L. 1941. It is clear that the 1941 statute bears only upon chapter 9 of title 43 of the Revised Statutes of which it is made a part. The title to the 1941 statute is "An act concerning county pensions and retirement, and supplementing chapter nine of title 43 of the Revised Statutes;" and the body of the act provides that the application for withdrawal thereunder shall be "without prejudice to his [the applicant's] rights as a veteran to any benefit to which he may be entitled under any other law." The words which we have italicized emphasize the function of the 1941 enactment
as a supplement to a single statute, namely, chapter nine of title 43.
Chapter 9 of title 43 of the Revised Statutes is a restatement of chapter 127, Pamph. L. 1922, a statute which in its original form and as now preserved is a pension system without contribution by the worker. The supplement of 1941 was apparently passed as a means of enabling a person who had mistakenly made contributions under that non-contributory pension law to recover his payments. Be that as it may, it is a reasonable prerequisite that before the applicant may proceed with his cause he shall make a prima facie presentation that the payments which he seeks to recover are payments made under that statute and to that pension fund, otherwise his claim has no significance. This he has not done. Not only so, but he does not deny the assertions made by the Police Pension Commission that the contributions paid by him through the years are the statutory contributions to a compulsory pension system under an entirely different statute.
Clearly the applicant is not entitled to a peremptory writ, and we are of the opinion that he has not shown sufficient merit to justify a rule to show cause why such a writ should not issue.
The application is denied, without prejudice and without costs.
Mr. Justice Perskie dissents.
PERSKIE, J. (Dissenting.) Relator, Russell J. Hain, a veteran of World War I, and the holder of an honorable discharge from the United States Army and the United States Navy, was appointed, on April 15th, 1930, by the Hudson County Boulevard Commission as a member of the Hudson County Boulevard police department. On April 9th, 1945, relator made application to the respondents for the withdrawal from the Police Pension System of the County of Hudson of the amount of his payments into the pension fund, with interest thereon at the rate of 4% per annum, without prejudice to his rights as a veteran ...