On appeal from Superior Court, Law Division.
For affirmance -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Jacobs, Francis and Proctor. For reversal -- None. The opinion of the court was delivered by Burling, J.
[27 NJ Page 268] This is an action, commenced in the Superior Court, Law Division, to recover judgment for $360.53 alleged to be a portion of accumulated deductions wrongfully withheld by the defendant, the Teachers' Pension and Annuity Fund (hereinafter referred to as the Pension Fund). The trial court, pursuant to defendant's motion, entered a summary judgment in favor of the defendant and the plaintiff appealed. We certified the cause prior to hearing in the Superior Court, Appellate Division, because of the principles of law involved and their application to this case and to other comparable claims.
Plaintiff, a veteran of World War II, was, prior to military service during the years 1942 until 1945, and has since been, a teacher employed by the Newark Board of Education. During his three year service in the armed forces the Newark Board of Education, pursuant to R.S. 38:23-6, made contributions for the plaintiff to the Pension Fund. These contributions, totalling $360.53, form the subject matter of the instant controversy.
This dispute involves the meaning of a provision of the Teachers' Pension and Annuity Fund -- Social Security Integration Act. N.J.S.A. 18:13-112.3 et seq. This act has been patterned after the Public Employees Retirement System Act, N.J.S.A. 43:15 A -1 et seq. Both acts are part of an over-all revision of the pension policies in this State, the purpose of which was to provide improved economic security benefits to public employees and teachers by integrating the respective retirement acts with the Federal Social Security Act. See Bureau of N.J. Public Employees, A Report on the Improvement of the Economic Security of N.J. State Employees (1953). In addition, the Legislature, in order to provide enhanced benefits for veterans in the employments covered and who were previously eligible for retirement under the Veterans' Retirement Act, R.S. 43:4-1 et seq., included such veterans within the coverage of the Public Employees Retirement System Act and the Teachers' Pension and Annuity Fund Act. See, A Report on the Improvement of the Economic Security of N.J. State Employees, supra, pp. 10-12. As part of the plan to integrate the benefits of the Veterans' Retirement Act into the Teachers' Pension and Annuity Fund Act (of which more hereafter), the Legislature provided in N.J.S.A. 18:13-112.72(a) that a refund shall be made to each veteran member of "his accumulated deductions as of January 1, 1956, less contributions based on his compensation for the year 1955 at the rate of contribution provided in subsection 'b'." Pursuant to N.J.S.A. 18:13-112.72(a) a refund was made to plaintiff of $3,632.66, being the total of contributions made by him during the period prior to January 1, 1955.
Thereupon plaintiff made an additional demand upon the Pension Fund for the return of the wartime service contributions of $360.53. The Pension Fund on February 21, 1957 refused to honor the demand, creating the issue herein involved, and thereafter on March 22, 1957 plaintiff brought an action in the Superior Court, Law Division, to recover the amount allegedly owing to him.
The Pension Fund moved for a summary judgment contending that: (a) the action is barred by the defense of sovereign immunity, or (b) the act, N.J.S.A. 18:13-112.3 et seq., provides for no such refund. The motion was heard by a County Court judge assigned under the integrated civil trial calendar of Essex County to the Superior Court. The trial judge concluded that the Pension Fund was not subject to suit because of the doctrine of sovereign immunity, relying upon the dictum to that effect in the case of Nordmann v. Johnson, 123 N.J.L. 259, 260 (E. & A. 1939). At the hearing the plaintiff requested that the case be retained as "a suit requiring a state official to perform an administrative function required by law." Plaintiff sought leave to amend the complaint to one in lieu of prerogative writ (mandamus) and to join, as a party defendant, the particular administrative official charged with the alleged ministerial duty. The trial judge rejected this request, concluding that, since the general assignment under which the County Court judges were empowered to hear causes in the Superior Court expressly excluded actions in lieu of prerogative writ, he was without any authority in the matter. See R.R. 1:31-1; cf. Brunswick Village v. Knof, 29 N.J. Super. 238 (App. Div. 1954). A summary judgment for the defendant was then entered "without prejudice to the institution of an action in lieu of prerogative writ" by the plaintiff.
It is our view that we need not decide the question of whether the Pension Fund is juristically the "alter ego" of the State so as to be cloaked with sovereign immunity, or whether there is in the statute an implicit consent to be sued. It is well settled that the doctrine of sovereign immunity will not bar a prerogative writ proceeding commenced
to compel the exercise of a ministerial duty imposed by law upon a state official. Jersey City v. Zink, 133 N.J.L. 437 (E. & A. 1945); Duke Power Co. v. Patten, 20 N.J. 42 (1955); cf. Gallena v. Scott, 11 N.J. 231 (1953). And it makes no difference in this regard, that the duty is the payment of money. The rationale of the rule is succinctly set forth in Jersey City v. Zink, supra. It is
"that a sovereign state must be presumed to be willing that its laws shall be obeyed. Through its laws it speaks to its servants and commands them to do that which is required. Certainly those servants by their acts of disobedience do not represent or stand for the State. The action on mandamus, therefore, instead of being a suit against the State, is against its servants to compel them to do that duty, which by accepting office, they agreed to perform. * * *. Where the duty of a public treasury official is delineated and 'charged by statute,' the writ will clearly lie." (133 N.J.L. at page 440)
The statute, N.J.S.A. 18:13-112.72(a), directs that "each veteran member shall have returned to him * * * his accumulated deductions" (emphasis supplied). The legislative mandate is clear, and involves no exercise of administrative discretion. Moreover, a prerogative writ proceeding is not barred because of the fact that there has been no judicial determination of whether the term "accumulated deductions" includes wartime service contributions made by the employer. As stated by Mr. Chief Justice Vanderbilt in Duke Power Co. v. Patten, supra,
"But we do not understand that the lack of any judicial decisions definitely setting forth the meaning of a statute is any disabling factor in the pursuit of a proceeding in lieu of a prerogative writ. What of the myriad of statutes that are so clear and unmistakable in their meaning as to require no construction? Can it be said that any duty imposed by such statutes cannot be enforced by action in lieu of prerogative writ because their construction is not settled? The fact that someone contends for a meaning different from that clearly expressed does not make the construction of a law unsettled. If this were so, then a proceeding in lieu of mandamus would never lie because the defendant would merely have to claim that he believes the duty ...