McGeehan, Bigelow, and Jayne. The opinion of the court was delivered by Jayne, J.A.D.
The plaintiff in this action in lieu of prerogative writ is the widow, remaining unmarried, of one Walter E. Garrabrant, who was in the employ of the County of Essex continuously from July 15, 1919 to June 15, 1951, a period in excess of 30 years. He died on October 2, 1951.
The factual background from which this litigation emerges may be revealed concisely. Pursuant to the legislative authority conferred by chapter 122 of the Laws of 1929, the County
Employees' Pension Fund was in that year created. Membership in the pension fund was not compulsory. Garrabrant in the exercise of the option made available to him by section 12 of the act notified the pension commission in writing that he did not desire to be bound by the provisions of the act and accordingly no deductions were made for pension contributions from his salary until by virtue of the enactment of chapter 169 of the Laws of 1937 he accepted the opportunity afforded him to become a member of the pension fund without the payment of arrearages, from which time, December 1, 1937, the regular deductions for pension allowances were currently made from his salary.
He continued to be a member of the County Employees' Pension Fund and of the Employees' Retirement System of the County of Essex with which the former was merged in 1943 (L. 1943, c. 160) until June 15, 1951, at which time he became totally and permanently disabled in consequence of injury and illness unrelated to his employment by the County of Essex.
He thereupon presented his application to the pension commission for retirement requesting the allowance of a pension equal in amount to 50% of his salary. He predeceased the determination of his request, and an application on behalf of the present plaintiff for the allowance to her as his surviving widow of a pension in like amount promptly ensued.
On November 5, 1951, although the pension commission determined that Garrabrant had been entitled to retirement on June 16, 1951, the applications for pension allowances equal to 50% of the decedent's salary were denied, and it was resolved by the commission that a pension be granted to him from June 16, 1951 to October 2, 1951, and thereafter to his widow, in an amount equal to 32 1/2% of the decedent's salary calculated only upon the period during which Garrabrant was a member of and contributed to the aforementioned pension systems rather than upon the maximum period of his employment by the county.
The plaintiff, conceiving the computation of the pension in point of basic time of service and percentage of salary to be invalid, prosecuted this action to obtain a judgment: (a) nullifying the resolution adopted on November 5, 1951, (b) directing the defendant to adopt a resolution approving and authorizing the payment of the pension requested, and (c) for the recovery of the unpaid instalments thereof. The plaintiff was awarded such a judgment, and the defendant appeals therefrom.
A consideration of the legal propriety of the judgment necessitates a familiarity with section 2 of the supplementary enactment of 1937 (L. 1937, c. 169, R.S. 43:10-17):
"Any such county employee who, prior to June third, one thousand nine hundred and thirty-seven, declined to be bound by the provisions of this article, may, notwithstanding such declination, within six months after said date, become a member of said fund upon payment into the fund, in such manner as shall be determined by the pension commission, all arrears, with interest, as the pension commission shall determine to be due in order to give such employee the same standing as a member of said fund as all other members who joined said pension fund when the law providing for such fund became effective. The maximum rate of interest shall not exceed the average rate of earnings of the investments of said fund. The maximum length of time for the payment of arrears shall be five years from the date of the application to join the fund.
Any such county employee who, prior to June third, one thousand nine hundred and thirty-seven, declined to be bound by the provisions of this article, may, notwithstanding such declination, become a member of said fund upon written application, and the regular deductions from the salary of such employee shall commence upon the filing of such written application; provided, however, that neither such employee, nor his dependents, shall be entitled to any of ...