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Murphy v. Zink

Decided: July 19, 1947.

EDWARD A. MURPHY, PROSECUTOR,
v.
HOMER C. ZINK, COMPTROLLER OF THE TREASURY OF THE STATE OF NEW JERSEY, RESPONDENT



On writ of certiorari.

For the prosecutor, Milton, McNulty & Augelli (Anthony T. Augelli, of counsel).

For the respondent, Walter D. Van Riper, Attorney-General.

Before Justices Bodine, Wachenfeld and Burling.

Burling

The opinion of the court was delivered by

BURLING, J. A writ of certiorari was granted to review the action of the respondent in rejecting the application of the prosecutor, EDWARD A. Murphy, for retirement from the position of legal assistant, grade I, in the Court of Chancery of the State of New Jersey and for a pension of one half of the annual salary received from said position. The application by the prosecutor for retirement was granted and a pension was granted by an order of the Chancellor of the State of New Jersey, dated May 3d, 1946, which order was to become effective as of May 31st, 1946.

There are many statutory clauses and conditions for the retirement of public employees on pension and for the establishment and upkeep of pension funds.

The prosecutor asserts his right to be retired on pension pursuant to the provisions of chapter 4, with headnote "Veterans" of title 43, classified under "Pensions and Retirement," of the Revised Statutes and also chapter 175 laws of 1945, which is classified under title 38 "Militia-Soldiers, Sailors and Marines" and found in the cumulative pocket part under the following designation: R.S. 38:23A-3, under the headnote "Special Privileges and Exemptions of Persons in Military and Naval Service."

The respondent denies his right to be retired upon a pension upon two grounds: 1 -- that the prosecutor has failed to

show twenty years of service as required under the first act and 2 -- that the second act referred to has no application to the subject-matter of this controversy.

On October 16th, 1924, Murphy was appointed a building contracts and general clerk in the Hudson County clerk's office, and as such served continuously in the service of Hudson County until April 1st, 1930, at which time and as the result of a competitive Civil Service examination, he was transferred to the sheriff's office of said county as an assistant bookkeeper. He continued in the service of Hudson County as an assistant bookkeeper in the sheriff's office until May 1st, 1933, when, effective as of that date, he was granted a leave of absence from his county position to enter the service of the State of New Jersey.

On May 1st, 1933, Murphy was appointed to the position of confidential agent and sergeant-at-arms of the Court of Chancery of New Jersey, by the Chancellor, in which position he served continuously in the service of the state from the date of his appointment to the present time. The title of his position was changed by the Civil Service Commission to legal assistant, grade I, on July 1st, 1945, the change to be effective as of December 1st, 1944.

He is an honorably discharged veteran of World War I, and is also a veteran of World War II, he having been honorably relieved from active duty and having reverted to status of an inactive officer of the Army of the United States. He is incapacitated for the duties of his position of legal assistant, grade I in the Court of Chancery of New Jersey, because he is afflicted with a disease which examining physicians have termed "arthritis, chronic, osteoarthritic type" and the said disease is not curable. He was paid for his services as legal assistant, grade I, in the Court of Chancery a compensation of $5,100 per year.

The applicable sections of the Veterans' Pension Act as amended in 1944 are set forth in R.S. 43:4-1 and part of 2 and provide as follows:

"43:4-1. Application of Chapter extended to certain veterans. This chapter shall apply to and include persons serving in and honorably discharged from the military or naval

service of the United States, including nurses, in any war in which the United States is or has been engaged and in connection with the American punitive expedition or other intervention campaign or trouble with the Republic of Mexico during the administration of President Woodrow Wilson; provided, such designated persons shall have attained the age of sixty two years or become incapacitated after twenty years of continuous or aggregate service for the duties of their office or position or employment. As amended L. 1944, c. 211 p. 749 par. 1."

"43:4-2. Retirement of veterans; death in war; pensions. 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. 43:4-2 was amended by laws of 1947, chapter 279, by deletion of words "except in the case of teachers in the public schools."

The prosecutor, who possessed the other qualifications necessary to make him eligible for retirement had not spent twenty years in the service of the state. Eight years were spent in the service of the County of Hudson. The balance of the time, he was employed in the state service as an aide to the Chancellor. By adding together the time spent serving Hudson County to the time spent in the service of the state, prosecutor argues that he has the twenty years' service record required by the statute and therefore is eligible for retirement.

Respondent, on the other hand, contends that the statutory period of twenty years must all be spent in the service either of the state or of the county; and that the years spent serving the county may not be considered when, as here, the applicant seeks retirement from the state service.

The storm center revolves about the use in the statute of the word "or" in the phrase ...


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