Jayne, Francis and Smalley. The opinion of the court was delivered by Francis, J.A.D.
The basic issue presented here is whether an employee in the public service, who has met the statutory conditions as to veteran status, age and length of service, must be retired on pension when he applies therefor even though there are serious charges pending against him at the time, which, if proved, will justify his dismissal from the service.
N.J.S.A. 43:4-2 provides:
"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, 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."
N.J.S.A. 43:4-1 imposes the additional qualification that the veteran shall have attained the age of 62 years, and R.S. 43:4-3 provides that a person who complies with sections 1 and 2 "shall be entitled" to a pension.
On or about March 28, 1953 appellant James L. Ballurio was arrested on complaints charging him with the crime of abortion in violation of N.J.S. 2 A:87-1. At this time he was in the employ of the City of Vineland as a foreman in the street department. He was an honorably discharged veteran of World War I, then 62 years of age, and he had been employed in the qualifying public service continuously for more than twenty years.
On April 2, 1953 Ballurio was suspended from his employment for a period of 30 days from March 31, 1953. The reasons assigned in the notice of suspension were:
"* * * You have been arrested and are being held for the Grand Jury on the charge of committing the crime of abortion and further are charged of conspiring to commit abortion and thereby your conduct is unbecoming an employee in the public service."
He was further informed that he was subject to removal in the absence of a satisfactory explanation or defense and that a hearing would be held on April 23, 1953 before respondent,
Albert Castellini, the Director of Streets, Roads and Public Property.
On April 8, 1953 Ballurio served upon the director (he being the officer empowered to appoint a successor) a written request for retirement under N.J.S.A. 43:4-1 et seq. An earlier application for such retirement, made two days after the arrest, was filed in error with the city clerk.
No action was taken on the request for retirement because of the pending charges, and on April 18 and 22, 1953 appellant filed a complaint and amended complaint in lieu of mandamus , seeking a judgment directing that he be pensioned.
The hearing before the director was held as scheduled and on May 5, 1953, Ballurio was notified that his explanation of the alleged criminal offenses was not satisfactory and he was therefore suspended until their final determination in the Gloucester County Court.
After taking some testimony in the prerogative writ proceeding, the trial court concluded that appellant had met the age, length of service, and veteran status conditions of the statute. However, on the authority of McFeely v. Board of Pension Commissioners , 1 N.J. 212 (1948), he held that respondent director was justified in withholding action on the pension demand pending the outcome of the criminal charges. And he declared that acquittal would result in the granting of the pension but conviction would ...