I have concluded that I cannot agree with the opinion of the majority in this case on the question of the legal effect of the four suspensions imposed upon the prosecutor, constituting a portion of the time embraced in prosecutor's claim for his right to pension. My reasons for reaching this conclusion are stated as follows:
Prosecutor, Matthew E. Pangburn, seeks to review bycertiorari the action of the Ocean City Police and Firemen's Pension Fund Commission in denying his application to be retired on pension. He first applied for a pension on April 24th, 1944, and again on February 1st, 1946. For the purpose of decision the latter application of February 1st, 1946, is the only application that need be considered.
Pangburn was originally employed as a member of the police department of the City of Ocean City on June 9th, 1924, as a patrolman and reported for duty on that date. It *Page 504 appears from the record that from the time of Pangburn's original employment until July 1st, 1944, he was suspended from active duty on five separate occasions. Four of these suspensions are for comparatively short periods of two to fifteen days each. A fifth suspension, which was for an indefinite period, ran from February 16th, 1929, to July, 1931, a period of approximately two years and four months. Prosecutor's application for pension was denied by the municipal pension commission pursuant to the advice of the city solicitor, on the grounds that prosecutor had not honorably served the requisite period of time under the controlling statutes.
A review of the controlling statutes involved will not be amiss. Pamph. L. 1920, ch. 160 as amended by Pamph. L. 1938, ch. 104, embodied in R.S. 43:16-1 provides in effect that members of the Pension Fund may apply for retirement on pension at half pay after honorably serving for a period of twenty years and attaining the age of fifty years. R.S. 43:16-1 was amended by Pamph. L. 1944, ch. 253, effective July 1st, 1944. As amended the statute provides for retirement on pension after serving honorably for a period of twenty-five years and attaining the age of fifty-three years. (This act was further amended by Pamph. L. 1947, ch. 234, effective June 2d 1947. By the latter amendment the age qualification was reduced to fifty-one years.) The age qualification of the applicant is not in dispute.
It is elementary that membership in a pension fund creates no vested or contractual rights. Laden v. Daly, 132 N.J.L. 440; 40 Atl. Rep. (2d) 780; affirmed, 133 N.J.L. 314; 44Atl. Rep. (2d) 212. The legislature was thus at liberty and within its prerogative of changing or modifying the qualifications of prospective applicants for pension as it might deem advisable. It is urged by prosecutor that the several periods of suspension did not operate to exclude him from the benefits of the statute. Prosecutor argues that a public officer "serves" as long as he holds office and that his suspensions did not operate to remove him from office. In short, it is contended that Pangburn, as a policeman, held his office subject only to the suspensions and that his period of service *Page 505 was not interrupted thereby. On the other hand, it is contended by the defendant that Pangburn's suspensions, particularly that which covered a period of more than two years, constituted an interruption of service and accordingly his period of honorable service fell considerably short of the required period.
We have carefully considered the factual situation and arguments of counsel in support of their respective contentions and conclude that the prosecutor had not on either of the dates of his applications for pension, to wit: on April 24th, 1944, and on February 1st, 1946, met the statutory requirements with regard to the required period of honorable service. Disregarding four of the various suspensions and considering only the suspension commencing on February 16th, 1929, and continuing for a period in excess of two years, it is palpably evident that prosecutor's period of honorable service falls considerably short of the required twenty year period fixed by the statute of 1920 and likewise short of the twenty-five year period of service required by Pamph. L. 1944, ch. 253. As stated by Mr. Justice Heher, in Plunkett v. Board of Pension Commissioners of the City ofHoboken, 113 N.J.L. 230; 173 Atl. Rep. 923; affirmed,114 N.J.L. 273; 176 Atl. Rep. 341:
"The legislative purpose is not open to doubt. The statutory scheme is to make retirement compulsory at the age of sixty-five years [now reduced], and optional with the member after he has reached the age of fifty years [now modified], unless he shall sooner sustain `permanent disability in the performance of his duty,'" * * * "`Retirement' connotes membership surrendered or lost at the instant of time it becomes effective. Moreover, honorable service is a sine qua non. The underlying considerations for this policy are manifest. A contrary policy would make for departmental inefficiency. The inducement for efficient and conscientious service, after the member attained the age of fifty years, would be immeasurably lessened, if he could, in the event of a conviction of charges of misconduct, insist that his dismissal be accompanied by the statutory pension. It is not incumbent upon a municipality, or other division of government, *Page 506 to establish a system of pensions. It is rather a question of public policy. * * * And that being so, it goes without saying that one of its fundamental purposes is to secure good behavior and the maintenance of reasonable standards of discipline during service." (Brackets ours.)
It is clear that the act contemplates and imposes as a sinequa non to a pension the requirement that the applicant's service be "honorable." Although we are not informed by the record what was the precise nature of the offenses for which prosecutor was suspended, we conclude that the particular suspension of prosecutor for an indefinite period and which actually exceeded a period of two years — (and which was not appealed by prosecutor) — was of such magnitude as to destroy the "honorable" character of prosecutor's service as defined inPlunkett v. Board of Pension Commissioners of the City ofHoboken, supra. To hold otherwise would be to say that any suspension, regardless of the length of its duration, would have no effect upon the continuity of a public officer's term of service. Under such an interpretation, a period of suspension running five, ten or more years could be said not to bar a public officer from obtaining a pension. We do not think that the legislature had any such intention in mind when enacting the statutes applicable here. To so hold would be completely to destroy the theory of public policy underlying all pension plans.