Pritchett v. Clapp

SHARP, Chief Justice.

This appeal presents these questions: Did N. C. Sess. Laws, ch. 282 (1973) incorporate the disability retirement benefits of G.S. 128-27 (c) into Section 3 of the Act in addition to the service retirement benefits of G.S. 128-27 (a) ? If so, does Section 4 of the Act now provide an additional benefit to a member who is disabled from injury sustained in the actual performance of his duties, or is Section 4 in conflict with Section 3, as amended, and therefore repealed by Section 7 of Chapter 282?

Respondent-appellants contend that repeals by implication are not favored, and the legislature manifested its intent to amend Section 3 only with reference to service retirement benefits by its failure to repeal or to mention Section 4. They also contend that the trial judge erred in passing upon the constitutionality of Section 4 when that question was not raised by the parties. Petitioner-appellees make the same contentions here which they made on appeal to the superior court.

As an aid to construction we first consider the history of the Act. As originally enacted by N. C. Sess. Laws, ch. 496 (1955), Section 3 of the Act specified the benefits which members “eligible for retirement from service” were entitled to receive “upon retirement or dismissal.”

Section 4 of the Act authorized the Board to pay a monthly disability allowance — the amount to be determined by the Board “in its sole discretion” within specified máximums — for any full-time paid member of the High Point Police Department “disabled from injury sustained in the active performance of his duties,” and found by the Board “to be unable to work as a policeman. . . .” In its sole discretion the Board could also “refuse to make payment in any amount in any case. . . .”

Subsequent to 1955 the Act was amended by the enactments listed in the preliminary statement. Until 1973 these amendments involved only changes in the contributions which members of the police force were required to make to the Fund and in the monthly benefits specified by sections 3 and 4. However, after the General Assembly rewrote Section 3 of the Act in 1973, any full-time member of the High Point Police Department, “upon his retirement from service” became entitled to receive benefits “equal to those he would have received based upon his eligibility under the provisions of Chapter 128 of the General Statutes governing the North Carolina Local Governmental Employees Retirement System . . . had he been a member of that retirement system.” The 1973 enactment (Ch. 282, § 1) also rewrote Section 1(c) of the Act to provide (1) that the monthly deductions from the pay check of every member of the fund “shall at all times conform to the provisions of the North Carolina Local Governmental Employees Retirement System”; and (2) that the city of High Point shall contribute to the Fund on the same basis it contributes to the State Retirement System for its other employees.

The 1973 revision of Section 3 of the Act unequivocally states the legislative intent (1) that any full-time member of the High Point Police Department shall make the same contribution to the Fund which members of the State Retirement System make, and (2) that, upon the termination of his service, a member shall receive from the Fund the same service and disability retirement benefits a member of the State Retirement System with his eligibility would receive from the State Retirement Fund. Thus, we hold that “benefits,” as that term is now used in Section 3 of the Act, means the benefits specified in G.S. 128-27, which, inter alia, provides for both service retirement benefits (G.S. 128-27(a)) and unrestricted disability retirement benefits to qualified members (G.S. 128-27 (c)). Under the latter section, a member’s entitlement to disability benefits is not limited to disability resulting from injury sustained in the actual performance of his duties as a policeman as it was under Section 4 of the Act.

Had the General Assembly, when it rewrote Section 3 in 1973, intended to limit Section 3 benefits to service retirement benefits under G.S. 128-27 (a), it is inconceivable that it would not have restricted the term benefits. It would have modified that term by the adjective phrase “service retirement” or it would have specifically excluded disability benefits under G.S. 128-27 (c) just as it excluded “employer providing lump sum death benefit.” Further, the use of the all-embracing phrase “termination from service” as rewritten in Section 3 of the Act manifests the legislative intent to encompass any cessation of employment. It includes resignation, discharge, disability and service retirement.

It is quite true, as heretofore pointed out, that when Section 3 was rewritten in 1973, Chapter 282 made no reference to Section 4 of the Act. However, by Section 7, Chapter 282 repealed “all laws and clauses of laws in conflict with the provisions of this Act.” In our view Section 4 is totally inconsistent with the 1973 revision of Section 3 of the Act and it was, therefore, repealed by Section 7 of Chapter 282, quoted above. Of course, a clause specifically repealing Section 4 would have been preferable, but sometimes even Solons nod. Sections 3 and 7 of Chapter 282 leave no doubt that the legislative purpose was to give High Point policemen retirement benefits equal to those provided by the State Retirement System and no more. We do not for a moment entertain the idea that the legislature ever intended to provide discretionary disability benefits under Section 4 for a member injured in the line of duty in addition to disability benefits under G.S. 128-27 (c).

Thus, we hold that this Section (N. C. Sess. Laws, ch. 496, § 4 (1955)), as amended, was repealed by N. C. Sess. Laws, ch. 282 § 7 (1973). Our conclusion that this was the intent of the General Assembly is bolstered by its enactment of N. C. Sess. Laws, ch. 691 (1975) (effective 25 June 1975). Section 5 of this enactment specifically repealed Section 4 of the Act, and Section 4 of the 1975 enactment amended Section 3 of the Act so that the Act now specifically provides benefits, “including both service retirement and disability retirement.” Where the Act amended is ambiguous, the amendment “may be resorted to for the discovery of the legislative intention in the enactment amended.” Taylor v. Crisp, 286 N.C. 488, 212 S.E. 2d 381 (1975) ; Childers v. Parker’s, Inc., 274 N.C. 256, 162 S.E. 2d 481 (1968).

Our construction of N. C. Sess. Laws, ch. 282 (1973) makes it unnecessary to decide whether the judge correctly considered or decided the constitutionality of Section 4 of the Act.

For the reasons stated herein the judgment of the Superior Court is

Affirmed.