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Bashwiner v. Police and Firemen''s Retirement System of New Jersey

Decided: May 25, 1961.

JOHN F. BASHWINER, APPELLANT,
v.
POLICE AND FIREMEN'S RETIREMENT SYSTEM OF NEW JERSEY, RESPONDENT



Goldmann, Foley and Nadell. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

Appellant Bashwiner appeals from the decision of the Board of Trustees of the Police and Firemen's Retirement System of New Jersey declaring him ineligible for enrollment in the System because he was over the maximum age limit of 30 at the time of his appointment as patrolman in the Bloomfield Police Department, N.J.S.A. 43:16A-3. Respondent did not consider his military service as having been "in time of war," so as to bring him within the exception of N.J.S.A. 43:1-1.1. These two statutes, as well as others relevant to the determination of this appeal, are more fully discussed below.

Appellant was born December 27, 1929 and at the time of his permanent appointment to the police department on February 1, 1960 was 30 years and 35 days of age. He had served three years in the United States Marine Corps, from June 17, 1947 to June 16, 1950. The local appointing

authority considered this service as having been "in time of war." The Retirement System takes the position that it considers military service to be "in time of war" only if it commenced before December 31, 1946. This policy is reflected in the rules and regulations adopted by its board of trustees on April 20, 1959, recognizing the lawful termination date of World War II as December 31, 1946.

Appellant argues two points on this appeal: (1) his military service was "in time of war," as that phrase is used in N.J.S.A. 38:23A-2, and therefore this period of service can be subtracted from his age at the time of appointment in order to qualify him, and (2) he is entitled to membership in the System, regardless of his age, under N.J.S.A. 43:16A-49.

I.

Age has for some time been one of the qualifications for appointment of policemen by municipalities. Originally, the maximum age limit was 55 years, L. 1915, c. 373, ยง 2. This was reduced to 40 by L. 1931, c. 335; to 35 by L. 1939, c. 318; and then to 30 by L. 1945, c. 219. The present statute, enacted in 1953 (c. 299), and in effect on February 1, 1960 when appellant was appointed a policeman, appears in N.J.S.A. 40:47-4. It retains the maximum age limit of 30 in all municipalities except those in counties of the third class having a population of less than 75,000, where a person may be appointed policeman if not more than 35 years old.

The provisions of N.J.S.A. 40:47-4 have since 1945 been expressly made subject to L. 1944, c. 98 (N.J.S.A. 38:23A-2), a veterans' preference statute, giving persons who served in the active military service after July 1, 1940, and "in time of war," credit for the period of such service in computing maximum age limitations for appointment to governmental office, position or employment. It reads, in pertinent part:

"When the qualifications for any examination * * * or appointment * * * to any office, position or employment under the government of * * * any * * * municipality * * * includes a maximum age limit, any person, who, heretofore and subsequent to July first, one thousand nine hundred and forty, entered or hereafter, in time of war, shall enter the active military or naval service of the United States * * * shall be deemed to meet such maximum age requirement, if his actual age, less the period of such service, would meet the maximum age requirement in effect on the date the person entered into such service of the United States."

The italicized language was added by L. 1946, c. 206. Appellant entered the service on June 17, 1947, and as of that date the maximum age for appointment for a patrolman was 30 years, the same as presently.

Subsequent to the passage of L. 1944, c. 98 (N.J.S.A. 38:23A-2), the Legislature established the Police and Firemen's Retirement System by enacting L. 1944, c. 255 (N.J.S.A. 43:16A-1 et seq), effective July 1, 1944. Section 3 (now N.J.S.A. 43:16A-3) provided that after that date any person becoming a policeman in a municipality which was a participant in the Retirement System "shall become a member of this retirement system as a condition of his employment; provided , that his age at becoming such a policeman * * * is not over thirty years; * * *."

On July 1, 1944, the effective date of the Police and Firemen's Retirement System Act, the maximum age for appointment to a municipal police force, as fixed by N.J.S.A. 40:47-4, was 35. Further, as already noted, this appointment provision was expressly made subject to the veterans' preference statute, L. 1944, c. 98 (N.J.S.A. 38:23A-2). The legislative scheme at this point in time presented a serious contradiction. On the one hand, the appointing statute contained an age limit of 35 and was subject to the veterans' preference provision. On the other hand, membership in the Retirement System, a condition of employment, was subject to an age limit of 30 and did not come within the purview of the veterans' preference statute, which referred only to examinations and appointments. Consequently, the

Legislature in 1945 acted to harmonize the appointment provisions with the Retirement System Act. On April 24 it passed L. 1945, c. 219, already referred to, amending N.J.S.A. 40:47-4 by reducing the age limit for police appointments to 30. Then, on May 4 it enacted L. 1945, c. 305 (N.J.S.A. 43:1-1.1), almost identical with the veterans' preference statute relating to appointments except that it dealt with the maximum age limit in pension funds or retirement systems. The statute provided:

"When the qualifications for eligibility for membership in any existing pension fund or retirement system of this State or of any county, municipality, school district or other political subdivision of this State, * * * includes a maximum age limit, any person who, heretofore and subsequent to July first, one thousand nine hundred and forty, entered or hereafter, in time of war, shall enter the active military or naval service of the United States * * * shall be deemed to be below such maximum age limit if his actual age, less the period of such service, would be below the age limit in effect on the date the person entered into such service of the United States."

The italicized language was added by L. 1946, c. 308, as in the case of the veterans' preference statute relating to appointments.

It is therefore manifest that appellant is in error, under the first of his contentions, in relying on N.J.S.A. 38:23A-2 for his veteran's preference, since this section, dealing only with examinations and appointments, is not controlling. Rather, N.J.S.A. 43:1-1.1, relating to pension funds or retirement systems, is the statute to be considered.

Although the strict holding of this case must be an interpretation of the meaning of "in time of war" as used in the retirement statute, N.J.S.A. 43:1-1.1, the same interpretation would necessarily have to be placed on the phrase in the appointment law, N.J.S.A. 38:23A-2. Were this not so, the legislative intention to harmonize the two sections would be destroyed. True, the validity of appellant's appointment as patrolman is not before this court;

he merely seeks enrollment in the Retirement System. Nevertheless, should we hold that he was correctly denied membership in the System because his military service was not "in time of war," such a holding would undercut the validity of his appointment. See Seire v. Police & Fire Pension Comm'n of Orange , 6 N.J. 586, 590 (1951).

Our problem is to discern the legislative purpose in using the phrase "in time of war" in N.J.S.A. 43:1-1.1 The Legislature has never specifically defined the term. The only definition to which we have been referred by appellant is that contained in L. 1942, c. 72 (N.J.S.A. 1:1-2a), passed soon after our entry into World War II against Japan, Germany and Italy, and which defines "present war" and similar phrases:

"Unless it be otherwise expressly provided or there is something in the subject or context repugnant to such construction, the following words, phrases and clauses, namely: 'present war,' 'present war emergency,' 'the existing state of war,' 'present defense emergency,' when used or named within this State in any manner whatsoever with relation to a period of time shall mean so long as the United States of America continues in the present wars with the governments of Japan, Germany and Italy, or any of them, and until the making of a treaty or treaties of peace concluding all of said wars."

In Publix Asbury Corp., Inc. v. Asbury Park , 18 N.J. Super. 286 (Ch. Div. 1951), affirmed o.b., 18 N.J. Super. 192 (App. Div. 1952), the court held that the definition in N.J.S.A. 1:1-2a was limited to the particular words and phrases expressly set out therein, and did not control the interpretation of the phrase "duration of the war" used in the lease in litigation. The court construed "duration of the war" as meaning the duration of actual hostilities -- the "shooting war" -- which the parties stipulated had terminated September 2, 1945.

Appellant argues, however, that it does not necessarily follow that because "in time of war" is not specifically defined in any statute, the ...


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