Conford, Freund and Sullivan. The opinion of the court was delivered by Conford, S.j.a.d.
[84 NJSuper Page 258] The issue here is whether a retirement pension granted plaintiff by the Consolidated Police and Firemen's Pension Fund Commission of the State of New Jersey ("Pension Fund," hereinafter) was properly based
upon plaintiff's $4,700 salary received prior to February 16, 1952 as a captain in the Jersey City paid fire department, or whether it should have been based on his $6,500 salary in the position of fire commissioner to which he was appointed February 16, 1952 and which he held until May 18, 1957, having applied for retirement on May 15, 1957 effective May 18, 1957. The Pension Fund ruled that the lower figure was controlling.
Plaintiff had served in the Jersey City Fire Department since May 18, 1920, rising to the rank of captain in 1933. On February 5, 1952 the City of Jersey City by ordinance created a "Board of Public Safety" within the Department of Public Safety (the city then functioning under the commission form of government). It was to consist of three members, to be designated respectively as police commissioner, fire commissioner and license commissioner, appointed by the Director of the Department of Public Safety to serve for a term co-extensive with that of the Director but subject to discretionary removal by him at any time. The ordinance provided that each member of the Board should perform such duties as might be assigned him by the Director "and shall assist the said Director in the administration of the affairs of the particular division to which he may be assigned." The salaries of the members of the Board of Public Safety were fixed by the ordinance, that of fire commissioner being set at $6,500.
Plaintiff was granted a leave of absence "from his status as captain" February 16, 1952 and on the same day was appointed fire commissioner. Thenceforth he received the salary appertaining to that office but continued to be listed on the fire department payroll. His leave of absence remained in effect until his application for retirement in 1957. By direction of a municipal pension agency to which the defendant Pension Fund subsequently succeeded, the pension deductions from plaintiff's salary were calculated upon his compensation as fire commissioner rather than as captain. This practice was continued under the administration of the fund by the defendant
Pension Fund, but it appears from the expanded record herein that the Pension Fund officials did not know prior to the application for retirement that plaintiff had become fire commissioner.*fn1 Moreover, that body tendered a return to plaintiff of the excess contributions made by him over the amount deductible on the basis of the salary of captain when it rejected his claim for pension on the higher basis. Plaintiff declined the tender.
Defendant has made no contention that plaintiff is not entitled to a pension under the statute, and we imply no view on the matter, confining our consideration strictly to the issue as to whether any pension payable must be calculated on the basis of the salary of fire commissioner rather than that of captain.
The statutory provisions involved in the controversy are N.J.S.A. 43:16-1, 43:16-17. Section 43:16-1, to the extent relevant, reads:
"In all municipalities any active member of a police department or of a paid or part paid fire department * * * who shall have served honorably in the police or fire department for a period of twenty-five years and reached the age of fifty-one years, or any employee member of any such department who shall have served honorably in such department for a period of twenty-five years and who has reached the age of sixty years shall, on his own application, be retired on a service retirement pension equal to one-half of his average salary. * * *"
Section 43:16-17 contains, among others, the following definitions:
"(1) 'Member' shall mean a person who on the effective date of the act of which this act is amendatory, that is on July first, one thousand nine hundred and forty-four, was a member of a municipal police ...