This matter comes before the Court on the following agreed statement of facts. Plaintiff has been employed as a lifeguard by the City of Ventnor City for a period in excess of 32 years. Since 1967 he has served as captain of the Ventnor City Beach Patrol. He is presently 52 years of age. The City of Ventnor City is a city of the fourth class as defined in N.J.S.A. 40:167-2.
This action was instituted to secure a declaratory judgment from this court that plaintiff is entitled to a pension from the City of Ventnor City pursuant to N.J.S.A. 43:13-24. The city resists plaintiff's assertion. Although the city acknowledges that plaintiff meets the eligibility requirements of N.J.S.A. 43:13-24, it contends that the establishment of a pension program was optional with the city and not obligatory and that since it has never exercised its option to create a pension fund for lifeguards plaintiff is without recourse.
N.J.S.A. 43:13-24 provides:
In all cities of the fourth class any member of the life guard force, whether employed as an officer or a guard, who has or shall have served on such a force for a period of twenty years, and shall have obtained that age of forty-five
years, and for a period of ten years preceding his application has been continuously in such service, may, either by the governing body of any such city or upon his own application, be retired upon half pay.
It is an elemental rule of statutory construction that the court is to give effect "to words used according to the clear and plain meaning they ordinarily import and avoid giving any construction which would distort that meaning or give greater effect than the language required. . . ." Matthews v. Irvington Bd. of Ed., 31 N.J. Super. 292 (App.Div.1954). The quoted section of the statute is rendered difficult to construe by the use of the word "may", which usually signifies the permissive rather than the word "shall" which usually signifies the mandatory. Harvey v. Essex Cty. Freeholder Bd., 30 N.J. 381 (1959); Cryan v. Klein, 148 N.J. Super. 27 (App.Div.1977); Bell v. Western EMP Ins. Co., 173 N.J. Super. 60 (App.Div.1980). However, such words may be considered interchangeably in the context of legislative intendment.
This court must attempt to discern the legislative intent from a review of the statute as a whole giving appropriate consideration to its nature and object. If in so doing it is necessary to give mandatory meaning to the otherwise permissive "may", such is acceptable if to do so would effectuate the intent of the Legislature. Harvey v. Essex Cty. Freeholder Bd., supra.
I do not consider this court at liberty to presume legislative intent on the basis of what the court feels is a fair and just result but the intention presumed must be consistent with reason and sound discretion.
Not having the benefit of any clear cut revelation in the legislative history or any prior judicial construction of the statute now before the court, the legislative intent must be determined from the spirit of the enactment and the policy sought to be established by it rather than a literal application of the words, which are subject to alternative meaning. The enactment in its entirety consists of six sections, N.J.S.A.
43:13-23 through -28. This legislation in its entirety and not merely the words used in N.J.S.A. 43:13-24, must be considered if its true meaning is to be ascertained. Petition of Sheffield Farms, 22 N.J. 548 (1956). When examining ...