Summary
In Beronio v. Pension Commission of Hoboken, 129 N.J.L. 557, this court held that under the clear mandate of the aforesaid statute, the then relator, Beronio, had a right to retirement and there is no discretionary right in the pension commission of the municipality to deny the application or to withhold action thereon, and a peremptory writ of mandamus issued to compel the pension commission to grant the application.
Summary of this case from Schliske v. Firemen's, c., Pension Fund ComOpinion
Argued January 19, 1943 —
Decided February 23, 1943.
A claim by a Pension Commission of a municipality that by reason of the war emergency it may be unable to fill a vacancy is no reason to deny the application of one whose qualifications for retirement are not disputed.
On writ of mandamus.
Before BROGAN, CHIEF JUSTICE, and Justices PARKER and PORTER.
For the relator, Edward Stover.
For the respondent, John J. Fallon.
The relator is and has been a policeman in the City of Hoboken continuously since September 1st, 1916. He is over fifty years of age. He has applied for retirement at half pay under the provision of N.J.S.A. 43:16-1. The respondent has failed to act upon his application which has been pending for several months. The statute, supra, provides that all policemen and firemen who have served honorably for a period of twenty years and reached the age of fifty years shall, on their own application, be retired on half pay. The respondent does not dispute relator's qualifications nor his legal right to retire but contends that for equitable principles in the sound exercise of discretion the retirement should be denied. It bases its position on the claim that by reason of the war emergency it may be unable to fill this vacancy, because it already has vacancies in the police and fire department for which suitable men cannot be found. It appears that relief from this situation has been sought from the legislature to the end that discretionary power be given the pension commissions during the period of the war in the retirement of policemen and firemen.
In the absence of such legislation under the clear mandate of the statute, supra, relator has a right to retirement and there is no discretionary right in the respondent to deny the application or to withhold action thereon.
We conclude that the relator's right to a peremptory writ of mandamus is clear and it will be issued.