On appeal from the Superior Court, Law Division, Sussex County, to the Appellate Division of the Superior Court, certified by the Supreme Court on its own motion.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- Justice Oliphant. The opinion of the court was delivered by Vanderbilt, C.J.
[21 NJ Page 275] This action in lieu of prerogative writ was brought by the plaintiff, Harry E. Watt, to compel the Borough of Franklin to pay him a pension pursuant to the direction of the Veterans' Pension Act, R.S. 43:4-1 et seq., based on an aggregate of more than 20 years of
public service. From a judgment in favor of the defendant entered in the Law Division of the Superior Court, the plaintiff appealed, and we certified the matter on our own motion while it was pending in the Appellate Division.
The plaintiff retired from the office of collector of taxes for the Borough of Franklin on December 31, 1954, and applied to the borough for a pension pursuant to the Veterans' Pension Act, supra. At the time of his retirement the plaintiff was 64 years of age. He had served in World War I and was honorably discharged from the United States Army. The 20 years' service upon which the claim for pension is based is made up of six years' service as a member of the common council of the Borough of Franklin, a position for which he received no salary or other remuneration, one year as a member of the General Assembly of the Legislature, for which service he received a salary of $500, and 16 years as tax collector of the Borough of Franklin, during all of which time he received a salary for his services. At the time of his retirement he was paid at the rate of $1,200 per year.
The services rendered by him, though continuous in each office, were not so in point of total service. There was a period of two years between service as a member of the common council and service as a member of the General Assembly, and a period of one year between service as a member of the General Assembly and election to the office of tax collector.
The pertinent portions of the Veterans' Pension Act are as follows:
"This chapter shall apply to and include persons serving in and honorably discharged from the military or naval service of the United States, * * * in any war in which the United States is or has been engaged * * * provided, such designated persons shall have attained the age of sixty-two years or become incapacitated after twenty years of continuous or aggregate service for the duties of their office or position or employment." (R.S. 43:4-1)
"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. * * *" (R.S. 43:4-2)
"A person so retired shall be entitled, for and during his natural life, to receive by way of pension, one-half of the compensation then being received by him for his service, which shall be paid in the same way and in the same installments as his compensation has been payable. No pension paid under this article shall be less than fifty dollars per month, unless the person so retired shall at the time of his retirement be receiving compensation of less than fifty dollars per month, in which case he shall be paid on retirement the full amount then being received by him for his service.
In case of retirement with pension from office or position under any other law of this state, the person retiring shall waive either his pension under that law or his ...