On appeal from the former Supreme Court, whose opinion is reported in 137 N.J.L. 234.
For affirmance: Chief Justice Vanderbilt and Justices Case, Heher, Oliphant, Wachenfeld, Burling, and Ackerson. For reversal: None. The opinion of the court was delivered by Heher, J.
On May 15, 1947, immediately after a municipal election in Hoboken which resulted in a change of political control, the local Board of Pension Commissioners, by formal resolution, granted a pension to respondent McFeely under R.S. 43:16-1, et seq., pursuant to an application made by him in writing on June 6, 1945, based upon a finding embodied in the resolution that the claimant had "served honorably" as chief of the local police department for a period of 37 years and had reached the age of 63 years. The long delay in acting upon the application is not explained; that is left to inference.
On August 21st, 1947, following the replacement of three of its five members under the new regime, the Pension Commission adopted two resolutions: the first "rescinded and set aside" the prior resolution granting the pension to respondent "as being null and void and for nothing holden," on a finding
that the pension was "inadvertently granted" and was "contrary to law," in that "the appellant could not and did not qualify for a pension" under the statute cited supra; the second resolved to "deny the application for a pension * * * because the applicant could not, has not, and cannot qualify for a pension" under the statute. On the prior day, the Director of Public Safety notified McFeely by letter of his "suspension from duty and pay as Chief of Police" because of his indictment for "a certain criminal offense, * * * until such time as the indictment * * * is disposed of according to law." McFeely has received neither salary nor pension since the adoption of the resolution of May 15, 1947.
The proceeding embodied in the resolutions of August 21st, 1947 was had without a hearing on notice to respondent and opportunity to be heard, and so is void.
Respondent would have us hold that in the performance of this particular portion of its statutory functions, the Pension Commission is a deliberative assembly whose action, once taken, is beyond reconsideration. But it is not that. The Commission in this respect exercises a power that is judicial in nature. It comprehends the exercise of discretion or judgment guided by the circumstances and the law. Judicial discretion is a mere legal discretion -- a discretion in discerning the course presented by the law; and what that has discerned it is the duty of the court to follow. Osborn v. The Bank of the United States, 9 Wheat. 738, 6 L. Ed. 204 (1824). Discretion cannot be arbitrary or capricious. The term is used in contradistinction to "ministerial." The act is not necessarily judicial rather than ministerial simply because its performance depends upon the existence of some specific factual prerequisite. The distinguishing characteristic is whether the act or function calls for the exercise of discretion or judgment judicial in nature. The determinative is the quality of the act rather than the character of the agency exercising the authority. Peabody v. Sanitary District of Chicago, 330 Ill. 250, 161 N.E. 519 (1928). Where the judicial faculty is assigned to a public officer or tribunal not essentially judicial in character, its exercise is termed quasi judicial. Thus, the term is used to describe governmental
officers, boards and agencies which, while not a part of the judiciary, nevertheless perform functions of a judicial character. Brandon v. Montclair, 124 N.J.L. 135 (Sup. Ct. 1940), affirmed 125 N.J.L. 367 (E. & A. 1940); Potts v. Board of Adjustment of Princeton, 133 N.J.L. 230 (Sup. Ct. 1945); Deweese v. Smith, 106 Fed. 438 (C.C.A. 1901). Where, as here, particularly as respects the requirement of honorable service, the administrative tribunal is under a duty to consider evidence and apply the law to the facts as found, thus requiring the exercise of a discretion or judgment judicial in nature on evidentiary facts, the function is quasi judicial and not ministerial. People v. McWilliams, 185 N.Y. 92, 77 N.E. 785 (1906); American Casualty Insurance Co. v. Fyler, 60 Conn. 448, 22 A. 494 (1891).
Pension funds of this class confer benefits which may not be arbitrarily denied. So long as the fund subsists, the rights of the beneficiary class under the statute are enforceable in accordance with the terms of the statute. Plunkett v. Pension Commission of Hoboken, 113 N.J.L. 230 (Sup. Ct. 1934); Pennie v. Reis, 132 U.S. 464, 10 S. Ct. 149, 33 L. Ed. 426 (1889). The right to enforcement is an interest of substance which the law protects as a property right while the statute continues in existence. Under the pension grant here and the underlying statute, respondent became entitled of right to each periodic installment as and when it accrued, so long as the statute remains in force; and the vacation of the grant itself and the denial of the pension claim for the supposed want of the statutory qualifications constituted the exercise of what purported to be judicial power without a hearing on notice to the pensioner and adequate opportunity to be heard, in disregard of the Federal and State constitutional guaranties of due process of law. Hyman v. Muller, 1 N.J. 124 (Sup. Ct. 1948); State Board of Milk Control v. Newark Milk Co., 118 N.J. Eq. 504 (E. & A. 1935).
This is not to say that the grant of a pension, once made, is final and conclusive, subject to appellate review but beyond reconsideration by the pension tribunal itself, ex mero motu, to await the ...