Hain v. Sweeney

Relator, Russell J. Hain, a veteran of World War I, and the holder of an honorable discharge from the United States Army and the United States Navy, was appointed, on April 15th, 1930, by the Hudson County Boulevard Commission as a member of the Hudson County Boulevard police department. On April 9th, 1945, relator made application to the respondents for the withdrawal from the Police Pension System of the County of Hudson of the amount of his payments into the pension fund, with interest thereon at the rate of 4% per annum, without prejudice to his rights as a veteran to any benefits which he may be entitled to under any other law. Pamph. L. 1941, ch. 399, p. 1022, § 1 (act concerning county pensions and retirement *Page 284 and supplementing chapter 9 of title 43 of the Revised Statutes); R.S. 43:9-6.1. His application was denied.

Relator has applied to this court for a peremptory writ ofmandamus to grant him the relief which the respondents had denied him, or in the alternative, why a rule to show cause should not be allowed directing the respondents to show cause why such peremptory writ of mandamus should not be issued, and providing for the taking of depositions.

Respondents here adhere to their determination that relator is not entitled to the relief he seeks. That denial is, basically and tersely stated, resisted upon the premise that Pamph. L. 1941, supra (R.S. 43:9-6.1) is specifically limited to the supplementing of chapter 9 of title 43 of the Revised Statutes and is altogether without application to other chapters of title 43 of the Revised Statutes upon which the relator bases his claim.

It is rudimentary that a peremptory writ of mandamus will not issue unless, among other things, the right to the writ is clear both as to the facts and as to the law. Cf. Eastern BoulevardCorp. v. West New York, 124 N.J.L. 345, and cases collated at pp. 346, 347; 11 Atl. Rep. (2d) 832; Consolidated CigarCorp. v. Brunner, 133 N.J.L. 77; 42 Atl. Rep. (2d) 631. From what has already been stated, no such clear right has been established by the relator on the legal branch of the case. Nor has such a clear right been established by him on the factual branch of the case. The record submitted is meager. It is not very informative. We are without proof as to the nature of the pension fund with which relator became affiliated and into which he made contributions. Nor is there any proof as to when and how this fund was created. Was it created purely voluntarily or was it created under some specific statute? What other parties have rights to said alleged fund (Cf. Kelly v. Kearins,132 N.J.L. 308, 311; 40 Atl. Rep. (2d) 305) who may be entitled to be heard? In other words, the record as submitted does not warrant nor was it intended to warrant a final disposition of the cause on the merits.

The right of one to an earned retirement on pension is a right of great concern both to the one entitled thereto and to *Page 285 the public at large. The adjudication of such a right must necessarily clearly satisfy the applicable statutory requirements. Thus while on the record as submitted relator has not presented the clear right, factually or legally, to a peremptory writ, he has, nonetheless, presented sufficient facts to justify the issuance of an alternative writ.

The fact that the relator did not ask for such a writ is beside the point. All the relator seeks is to start the applicable practice in motion to establish his asserted claim. The issuance of an alternative writ is, in the circumstances, the proper practice. If issued, it will enable the relator, inter alia, to make out his case, if he can, and the result may be reviewed on appeal if necessary; whereas the award of a peremptory writ, or the refusal as here, of the court to act, is not so reviewable.Schnitzler v. New York Transportation Co., 76 N.J.L. 171,172; 68 Atl. Rep. 905; Cf. Freda v. Societa Di Mutuo, c.,Jersey City, 106 N.J.L. 17; 148 Atl. Rep. 204.

An alternative writ should therefore be awarded. It will result in a proper record upon which the court may properly decide the issue on the merits.