Clapp, Davidson and Sullivan. The opinion of the court was delivered by Clapp, S.j.a.d.
[46 NJSuper Page 176] This action in lieu of prerogative writ was brought by the plaintiff in the Superior Court, Law Division, to compel the payment to himself of a pension of $6,000 a year under the Veterans Pension Act. N.J.S.A. 43:4-1 to 43:4-4. The Law Division dismissed his complaint
on the ground that it failed to state a claim upon which relief could be granted. He appeals.
On April 16, 1953 plaintiff, who had been a Deputy Attorney-General at a salary of $6,000 a year, was appointed Chief Condemnation Counsel for the New Jersey Highway Authority at a salary of $12,000 a year. He served in the latter capacity only a short time, but four months, when he was retired by the Authority upon his own request and upon an agreement on his part not to call upon it for a pension under the Veterans Pension Act. His claim was and is against the State, not the Authority; that is, it is against the State Treasury, not against Authority funds. The State rejected his claim for a pension of $6,000 a year; it has, however, paid him a pension of $3,000 a year under the act, basing it upon his former salary as Deputy Attorney-General.
It should be observed, in passing (though it is not a matter of any consequence now, R.R. 1:27 D(b)), that the Law Division had no authority in the premises. To review the action or, plaintiff claims, inaction of the state officials or agencies involved, he should have taken an appeal therefrom directly to the Appellate Division under R.R. 4:88-8. The term "action," found in the rule, includes inaction. Over such matters the Appellate Division has exclusive cognizance.
We are confronted with questions of statutory construction. It might be noted that in plaintiff's opinion, in view of the passage of N.J.S.A. 43:15 A since his retirement, there is little, if any, chance of similar questions arising or of new claims being advanced now under the Veterans Pension Act.
The first question before us is raised by the provisions of the act, which limit its benefits to those persons holding "office, position or employment of this State * * *" etc. (N.J.S.A. 43:4-2). Was the plaintiff, while with the Authority, such a person? The State contends he was not. It argues that the Authority is an autonomous body (a point with which we will have to deal somewhat herein) and that hence its employees are not "of" the State; thus, under the
Public Employees Retirement System set up in N.J.S.A. 43:15 A , they are said not to have the status of state employees but are merely given the same benefits "as State employees" (N.J.S.A. 43:15 A -73). Plaintiff, however, with much force invokes N.J.S.A. 38:23 A -3. Under that statute " any rights, privileges or benefits" given to honorably discharged veterans by " any law" are conferred upon "all those engaged in the public service in any of its branches within this State," regardless of the source of the public funds from which they are paid. See, too, the introducer's statement to the bill enacted as N.J.S.A. 38:23 A -3, in which the introducer asserts that the purpose of the bill is to make "veteran legislation" equally applicable to all veterans. Further, see De Vita v. Housing Authority of the City of Paterson , 17 N.J. 350, 359 (1955). However, in view of our conclusions on the second point, we need not deal with this one. We shall assume, in accordance with plaintiff's contention, that Highway Authority employees are entitled to a pension under the Veterans Pension Act.
That brings us to the second question, namely, whether such a pension (assuming it to be due) would be payable from the State Treasury, as plaintiff maintains, or only from Highway Authority funds, as the State maintains. Plaintiff has not made the Authority a defendant to this action, and he asserts categorically in his brief that he does not claim (or wish to claim) to have any right to a pension out of its funds. Our question, therefore, reduces itself to this: did the State intend to obligate itself and place defendants, the State Treasurer or the Director of Budget and Accounting, under a duty to pay out of the State Treasury this pension which we have assumed to be due the plaintiff?
As we understood plaintiff's position on the oral argument, he seems to have put forward two answers to this question. First, he claims that defendants are obligated to pay all salaries of Highway Authority employees and, generally, all expenses in connection with its operation, including therefore pensions under the Veterans Pension Act. Second, he
claims that defendants, regardless of this general obligation, are under a particular ...