For affirmance -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Schettino, J.
Appeal is from a Superior Court, Law Division, judgment in favor of defendants upholding the constitutionality of L. 1947, c. 367 (hereafter referred to as N.J.S.A. 43:10-18.26) and dismissing plaintiff's complaint. The case was decided on the pretrial order, exhibits and stipulated facts. The trial court's opinion is reported in 51 N.J. Super. 363 (Law Div. 1958). Plaintiff appealed to the Appellate Division and we certified under R.R. 1:10-1(a).
In 1923 plaintiff was appointed a court attendant in the office of the Sheriff of Essex County. From that date he
has been in the classified service under Civil Service, a member of a certain pension fund until 1943 at which time he became a member in good standing of the pension system under L. 1943, c. 160, as amended (N.J.S.A. 43:10-18.1 et seq.), the pension fund statute, and continued to be up to the date his services were terminated on January 9, 1958.
N.J.S.A. 43:10-18.26 is a supplement to the pension fund statute. It encompasses "pensionable" court attendants, guards, keepers and others caring for prisoners. It provides for the retirement at age 65 of employees of certain counties and also provides for the employees' continuance in their positions after that age. This statutory provision, affecting this plaintiff and the defendant county, provides in part:
"The board of chosen freeholders * * * may retire any court attendant in the office of the sheriff, * * * who shall have served as such for a period of twenty years, and shall have reached the age of sixty-five years, and who, at that time, is a member of the employees' retirement system * * *; provided, however, subject to the approval of the board of chosen freeholders, that any such person may be continued in his * * * county employment after reaching the age of sixty-five, if the sheriff * * * shall file a certificate with the board of chosen freeholders and the pension commission of the county, certifying that such person is in good physical and mental condition and able to fully perform his * * * duties, in which event such employee shall be permitted to remain in employment for a period not exceeding one year from the date of the certificate. Such certificates may, in the discretion of the sheriff * * *, be renewed annually until after such person shall have reached the age of seventy." (Emphasis supplied.)
On November 9, 1957 plaintiff became 65 years of age. The sheriff did not file the necessary certificate. The sheriff's notice of termination dated December 4, 1957 stated that plaintiff was being retired in view of his lengthy leaves of absence due to illness in the previous two years. On March 15, 1958, after this suit was started, the board of chosen freeholders by resolution terminated plaintiff's services nunc pro tunc as of January 9, 1958.
Plaintiff argues that the statute violated Art. IV, § VII, pars. 7, 8, and subsections 5 and 13 of paragraph 9 of the
New Jersey Constitution of 1947 in that it constitutes "special" legislation as it applies only to those court attendants and custodial employees who are members of the Employees' Retirement System. It was stipulated that 87 court attendants are members of that system and three are not, and that of all the permanent custodial employees, including court attendants, 232 are members of the system and 12 are not. Plaintiff also argues that the statute is violative of due process and denies equal protection of the laws because it vests in the board of chosen freeholders and the sheriff an absolute discretion to retire or not to retire an employee; that it creates a division within a class where no realistic division exists, and that it sets up no norm or standard by which a determination could properly be made whether an employee shall or shall not be continued in service after age 65.
Defendants argue that the emphasized word "may" in the statute should be read as "shall" in order to effectuate the intention of the Legislature to compel the retirement of the designated county employees at age 65.
The trial court held that this legislative classification of "court attendant" was reasonable and that the fact that only court attendants who are members of the retirement system were encompassed did not render the statute unconstitutional. It further held that the statute, in permitting the sheriff and board of freeholders to continue a court attendant in service from year to year after 65 and through 70, did set forth sufficient standards, namely, "good physical and mental condition and ability to fully perform the duties of his employment." (51 N.J. Super. at page 367).
Subsequent to the filing of the appeal plaintiff wrote to the Pension Fund Commission of the Employees' Retirement System of Essex County, requested a pension ...