Salz v. State House Commission

The opinion of the court was delivered by

Clapp, S. J. A. D.

Louis C. Salz applied to the State House Commission for a pension by reason of service with the State Police from 1922 to 1942 and since then with the II. S. Army. Presently he is a lieutenant colonel. The pension was denied, reserving to him, however, the right to reapply therefor without prejudice upon his return from the Army. He appeals.

N. J. S. A. 53:5-2.1, effective in 1949, the statute on which Col. Salz relies, requires a state policeman to be retired, and a pension to be paid him, if he is 55 years of age and has 25 years of service. Col. Salz became 55 in 1949, and he claims that for the purpose of calculating the 25 years of service, time spent in the Army since 1942 is the equivalent of time spent with the State Police. N. J. S. A. 38:23-5. Further, he points out that the requisite contributions to the State Police Retirement and Benevolent Fund were made by him until July 1, 1942, when N. J. S. A. 38 :23-6 became effective, and since then on his behalf by the State under that statute.

N. J. S. A. 38 :23-4 is, we think, controlling. The statute, so far as applicable here, directs that where a person in the service of the State enters the Army in time of war, he shall be granted a certain leave of absence; and, further, that during the period of that leave of absence he shall be entitled to all the rights, privileges and benefits he would have had or acquired had he actually been in service with the State Police, “except, unless otherwise provided by law, the right to compensation.”

In short, the statute bars (1) “compensation,” (2) “during the period of such leave of absence,” (3) “unless otherwise provided by law.” We shall look at these three matters in that order.

We think compensation includes a pension. For one thing, by the use of the word “pay” in the next sentence in N. J. S. A. 38:23-4, there is a fairly clear indication that in this statute compensation is not equivalent to pay. But much more significant are the many cases holding that the compensation of a public employee includes his pension. Hayes v. Hoboken, 93 N. J. L. 432, 433 (E. & A. 1919); Emanuel v. Sproat, 136 N. J. L. 154 (Sup. Ct. 1947), affirmed 137 N. J. L. 610 (E. & A. 1948); Passaic National Bank & Trust Co. v. Eelman, 116 N. J. L. 279, 283 (Sup. Ct. 1936); Gibson v. City of San Diego, 25 Cal. 2d 930, 156 P. 2d 737 (Sup. Ct. 1945); Voorhees v. City of Miami, 145 Fla. 402, 199 So. 313 (Sup. Ct. 1940); People ex rel. v. Abbott, 274 Ill. 380, 113 N. E. 696 (Sup. Ct. 1916); Giannettino v. McGoldrick, 295 N. Y. 208, 66 N. E. 2d 57 (Ct. App. 1946); Quam v. City of Fargo, 77 N. D. 333, 43 N. W. 2d 292 (Sup. Ct. 1950).

So, N. J. S. A. 38:23-4 bars a pension during a certain period — “the period of such leave of absence.” Under the statute this period shall extend during active military service “and for a further period of three months after receiving [a] discharge from such service.” Bischarge from service is to be construed as including relief, release, transfer or retirement from active duty status by military authorities. Dierkes v. City of Los Angeles, 25 Cal. 2d 938, 156 P. 2d 741 (Sup. Ct. 1945); Quam v. City of Fargo, 77 N. D. 333, 43 N. W. 2d 292 (Sup. Ct. 1950), supra; cf. U. S. v. Sweet, 189 U. S. 471, 473, 23 S. Ct. 638, 47 L. Ed. 907 (1903); Denby v. Berry, 263 U. S. 29, 44 S. Ct. 74, 68 L. Ed. 148 (1923); Stephens v. Civil Service Comm., 101 N. J. L. 192, 198 (E. & A. 1924). Thus it may be said to be within the contemplation of N. J. S. A. 38:23 — 4 that, unless otherwise prodded by law, Col. Salz is to be denied a pension until after his separation from active military service.

The phrase in N. J. S. A. 38 :23-4, “unless otherwise provided by law,” we think has reference to other statutes dealing with military service. There is no such statute controlling here. The phrase stated does not, as Col. Salz contends, apply to a statute such as N. J. S. A. 53 :5--2.1 which is operative without regard to such service.

So we reach the conclusion that N. J. S. A. 38:23-4 bars the payment of a pension until after Col. Salz has been separated from active duty status in the Army.

It is true that pension statutes should be construed liberally. Bederski v. Policemen’s and Firemens &c. Newark, 4 N. J. Misc. 637 (Sup. Ct. 1926), affirmed 104 N. J. L. 163 (E. & A. 1927); Ghesquier v. Fire & Police &c. Paterson, 117 N. J. L. 327 (Sup. Ct. 1936) ; 70 C. J. S., Pension, § 2, p. 425. And the same is true of statutes such as N. J. S. A. 38:23-4 and 38:23-5 which were enacted for the benefit of public employees who enlist or are drafted in time of war or emergency. Gibson v. City of San Diego, 25 Cal. 2d 930, 156 P. 2d 737 (Sup. Ct. 1945), supra; Quam v. City of Fargo, 77 N. D. 333, 43 N. W. 2d 292 (Sup. Ct. 1950), supra; cf. Fishgold v. Sullivan Drydock & Repair Corp., 328 U. S. 275, 285, 66 S. Ct. 1105, 90 L. Ed. 1230 (1946). But, as the cases hold, such a liberal construction is put upon the statutes only to effect the legislative purpose. It would be license, not liberality, to reject that purpose. Massari v. Accurate Bushing Co., 8 N. J. 299 (1951); Adams v. Atlantic County, 137 N. J. L. 648 (E. & A. 1948). Cf. People v. Calderwood, 333 Ill. App. 541, 77 N. E. 2d 849 (App. Ct. 1948); Batchelor v. Newness, 145 Ohio St. 115, 60 N. E. 2d 685 (Sup. Ct. 1945). We think the legislative purpose stated in N. J. S. A. 38 :23 — 4 with respect to the matter of compensation does not warrant the payment of the pension sought here until after Col. Salz’s separation from active military service.

A provision precluding a pension from public funds to a public employee still in governmental service is by no means unusual. In other connections our statute refuses to allow such an employee “pension and salary at the same time” from public resources, even though the pension is paid in another state. Judson v. Newark Board of Works Pension Assn., 132 N. J. L. 106 (Sup. Ct. 1944), affirmed 133 N. J. L. 28 (E. & A. 1945); N. J. S. A. 43 :3-l to 43 :3-4. As to somewhat similar statutes i'n a considerable number of other states, see 3 McQuillin, Municipal Corporations (3rd ed. 1949), § 12.159; 162 A. L. R. 1469; People ex rel. Luthardt v. Retirement Board, 273 Ill. App. 387 (App. Ct. 1934).

The conclusion reached here is in conformity with N. J. S. A. 38:23-5. That statute should be construed with N. J. S. A. 38 :23-4 in an endeavor to give unity to the law. Specifically N. J. S. A. 38:23-5 provides for the computation of the pension for a public employee still in military service, but only in the event of disability or death. The failure to provide for such a computation in the event of retirement from the state employ while in active military service is a substantial indication of an intention not to provide for a pension in that event.

Our conclusion is also in conformity with another provision of N. J. S. A. 38:23-4, which deprives a person of the ■benefits of the statute if he has been separated from the service by a dishonorable discharge. A question as to dishonorable separation from the active military service must of course be deferred until after the termination of such service.

When and if Col. Salz applies for a pension after separation from the active military service, consideration can be given to the further question, raised here, whether he has abandoned his position with the State Police by remaining in the Army and, incidentally, whether the leave of absence allowed by the statute extends after the termination of hostilities on December 31, 1946 through the technical state of war which existed thereafter and through the national emergency declared by the President on December 16, 1950. Feil v. Senisi, 7 N. J. Super. 517 (Law Div. 1950); 3 Code Fed. Regs. 71 (1950 supp.) (Presidential Proclamation 2914— 1950, 50 U. S. C. A. Appendix, note preceding § 1); 3 Code Fed. Regs. 30 (1952 supp.) (Presidential Proclamation 2914 — 1952, 50 U. S. C. A. Appendix, note preceding § 1). These questions should be determined under the law prevailing at the time of such an application on Col. Salz’s part. Laden v. Daly, 132 N. J. L. 440 (Sup. Ct. 1945), affirmed 133 N. J. L. 314 (E. & A. 1945); Caronia v. Police and Fire Pension Com. of Orange, 18 N. J. Super. 149 (App. Div. 1952).

We therefore hold, substantially as held by the State House Commission, that Col. Salz’s application for a pension was properly denied without prejudice to a reconsideration of his rights either in the event an application is made upon his separation from active service in the Army or in the event of his disability or death.