Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
[37 NJSuper Page 334] The precursory observation may be expressed that in consequence of legislative action the fundamental question which has occasioned the present litigation will no longer be controversial after January 1, 1956. Thereafter no veteran of military service who is eligible for membership in the Teachers' Pension and Annuity Fund will be entitled to receive retirement benefits pursuant to R.S. 43:4-1 to 43:4-5 inclusive. L. 1955, c. 37, §§ 52, 73; N.J.S.A. 18:13-112.3, et seq. A comparable legislative
policy is discoverable in L. 1953, c. 423, § 15; L. 1954, c. 84, § 56.
Here, however, the plaintiff, an honorably discharged veteran of World War I, who had been employed by the Board of Education of the Borough of Glen Rock in the County of Bergen from July 1, 1930 to August 15, 1941, and by the defendant board of education continuously since August 15, 1941, and having attained 62 years of age, resolved to retire from his position as superintendent of the Newton public schools.
On April 7, 1954 the plaintiff dispatched the following informative communication to the defendant:
"After a careful study of the problems involved in retirement, I have decided to take advantage of the provisions -- Retirement of Certain Veterans After Twenty Years' Public Service -- 43:4-1 et seq. as amended by Chapter 87 of the Laws of 1943, Chapters 191 and 211 of the Laws of 1944 and by Chapter 279 of the Laws of 1947.
Enclosed is a copy of the above provisions, also a copy of my honorable discharge from the Army."
It is appropriate to state that the plaintiff was then receiving an annual salary of $7,500. On July 1, 1954 the defendant addressed a reply to the plaintiff's communication, the significant portion of which follows:
"The Newton Board of Education has directed me to send this communication to you.
The Newton Board of Education has taken official action concerning your letter of April 7, 1954. The board is in sympathy with you, but is not in a position to grant your request without submitting the issue to the voters of Newton.
The board believes that if you are entitled to the benefits of the act, you have waived any rights thereunder. You have represented to the board on many occasions that you were not retiring under the act and, as you told the committee from the board, changed your mind in April after computing the difference in benefits.
Regardless of the situation, no funds have been appropriated for the payment. An election has been scheduled for August 25, 1954, and we will abide by the decision of the voters."
Accordingly the proposal of the board of education to issue promissory notes in anticipation of ...