For the prosecutor, Albert M. Ash.
For the defendant, John E. Boswell.
Before Justices Donges, Colie and Eastwood.
The opinion of the court was delivered by
DONGES, J. Certiorari was allowed to review the action of the defendant in denying prosecutor's application to be retired from the police department on pension.
Prosecutor was employed as a member of the police department of the City of Ocean City on June 9th, 1924, as a patrolman. He reported for duty on that day and continued such service until June 13th, 1946. On April 24th, 1944, he applied for pension alleging his right to pension by reason of having served "for a period of 20 years and having attained the age of 50 years, to wit, the age of 53 years." On May 17th, 1944, the application was denied by the Police and Firemen's Pension Fund. On February 1st, 1946, prosecutor made application for retirement on pension. In each instance, prosecutor based his application on chapter 160 of the laws of 1920 (R.S. 43:16-1).
The defendant urges that prosecutor is not entitled to retirement because of several suspensions during the years of his service. The record discloses that he was suspended on five occasions. Four suspensions were for short periods, varying
from two days as a minimum and fifteen days as a maximum suspension. The fifth suspension appears to have been for an indefinite time, and appears to have run from February 16th, 1929, to July, 1931. The municipal commission, on the advice of the city solicitor, denied the application on the ground that prosecutor had not honorably served the twenty years required by the statute. There is no question that he had reached the required age.
The record does not disclose the reasons for the several suspensions. No claim is made that any of the grounds for suspension involved charges preferred against prosecutor or that any offense involving moral turpitude was alleged.
As stated, the record is silent as to the cause for the disciplinary actions resulting in the various suspensions suffered by the prosecutor. In any event, they were not of such serious character as to call for the dismissal of prosecutor, since he was re-instated each time. When he was re-instated after the long suspension it was upon the occasion of the withdrawal from the service of a man who was sick, which suggests that the prolonged suspension might have been occasioned, in part at least, by lack of need for the services of prosecutor.
From the scanty and inadequate record it cannot be determined that prosecutor was guilty of conduct rendering him guilty of dishonorable service. He had been a member of the police force for a period of twenty years when the act of 1944 became effective. Prima facie he was entitled to a pension and the burden of proving dishonorable service rests upon the defendant. The statute clearly indicates that the policy, as set by the legislature, is not to consider conduct in violation of departmental rules as amounting to dishonorable conduct, because R.S. 43:11-1 provides that such violations, although punishable by fine, reprimand or dismissal, shall not deprive a member of the police or fire department of his pension privileges. Plunkett v. Board of Pension Commissioners of the ...