#### PEOPLE ex rel. HARDY v. GREENE, Police Commissioner.

(Supreme Court, Appellate Division, Second Department.

November 13, 1903.)

L Police Force—Retirement on Half Pay—Misconduct.

Under Consolidation Act, Laws 1888, p. 1007, c. 583, tit. 11, § 42, providing that any member of the police force, who shall have performed police duty 20 years or more, shall on his application be retired and pensioned at half pay, and Greater New York Charter, Laws 1901, p. 154, c. 466, § 355, providing for pensioning members of the consolidated police force, and preserving the right to retire on a pension because of previous service, one has not the right to so retire when under suspension on charges of misconduct, though he was entitled to such retirement at the time of the consolidation.

Goodrich, P. J., and Hooker, J., dissenting.

¶ 1. See Municipal Corporations, vol. 36, Cent. Dig. § 520.

Appeal from Special Term, Kings County.

Mandamus, on the relation of Samuel Hardy, against Francis Vinton Greene, police commissioner of the city of New York. From an order granting a writ of peremptory mandamus requiring the commissioner to place relator on the police pension roll, the commissioner appeals. Reversed.

Argued before GOODRICH, P. J., and BARTLETT, JENKS, HIRSCHBERG, and HOOKER, JJ.

James McKeen (Walter S. Brewster, on the brief), for appellant.

William B. Hurd, Jr., for respondent.

HIRSCHBERG, J.

On May n, 1903, the relator, a captain on the police force of the city of New York, applied in writing to the respondent, the police commissioner of said city, to be retired from service and to be placed upon the police pension roll, with an award during life of half pay, amounting annually to the sum of $1,375. The application was denied by the commissioner, for the reason that serious charges of neglect of duty, which, if proven, -might justify his dismissal from the force, had been duly preferred against the relator on May 6, 1903, and had resulted in his lawful suspension from active service on May 7, 1903, but upon which charges he had not been tried at the time of the application. The order appealed from requires the commissioner to retire the relator in accordance with his application, and can only be supported upon affirmance of the proposition that his right to be retired upon a life pension is so absolute in its nature that it cannot be defeated by his own misconduct.

The assertion of this unusual right is based upon a literal reading of the statutes governing the case, without giving due regard to *674their undoubted intent and beneficial purpose. The relator has been a policeman for 36 years in the borough of Brooklyn, and at the time of the consolidation of the constituent municipalities in the formation of Greater New York was entitled to be retired as a police captain in accordance with the terms of subdivision 6, § 42, tit. 11, of the consolidation act, relating to the City of Brooklyn (chapter 583, p. 1007, Laws 1888). That subdivision provides that any member of the police force, who shall have performed police duty for 20 years or upward, “shall, upon his own application in'writing, be retired from service and placed upon the police pension roll, and thereupon shall be awarded, granted and paid from said police pension fund by the trustees thereof an annual sum during his lifetime equal to one-half the full pay of a member of said police force of the rank of the member so retired.” By the Greater New York Charter (chapter 378, p. 1, Laws 1897, as amended by chapter *466,*p; 1, Laws 1901) provision is made for the pensioning of members of the consolidated police force by the terms of section 355 (page 154); and the relator’s right to be retired upon a pension because of the length of the service rendered by him before consolidation is expressly preserved by the proviso that:

> “No member of either of the police forces by this act consolidated, having a right to retire upon a pension at the time this act takes effect, shall be deprived of such right by reason of his remaining upon the police force, or of anything in this act contained.”

It seems to me that the object of the two statutes which I have quoted is quite apparent, and that it does not include the creation of an indefeasible right to retirement, notwithstanding that the member seeking to be retired has been guilty of gross misconduct in office. The provision in the statute relating to the city of Brooklyn is, like all pension provisions, designed to encourage long and faithful service by the assurance of ultimate honor and the reward of a lifelong competency. While there is no provision in the statute to the effect that the applicant for retirement must be in good standing at the time, it must be assumed, from the very nature and purpose of a pension, that no successful application could be made by one who was under suspension pending the trial of charges relating to his official conduct. The pension roll is a roll of honor—a reward, of merit, not a refuge from disgrace; and it would be an absurd' construction of the language creating it to hold that the intention of the Legislature was to give a life annuity to persons who, on their merits, as distinguished from mere time of service, might be dismissed from the force for misbehavior.

If this , view of the statutes is correct, it follows that the relator’s right to retirement at the time of consolidation was subject to his continued good behavior. This right continued after consolidation; for the provision of the Greater Charter hereinbefore quoted is manifestly intended to give to the relator the benefit of his long service in the city of Brooklyn, and not to require him to serve anew the prescribed period in the greater city. Be that as it may, however, it cannot be said that the relator is deprived of any right by reason of his remaining upon the police force after consolidation, or by reason *675of anything contained in the Greater New York Charter, supra. He is deprived of the right to retire because he has been suspended from the force until the charges pending against him have been tried; and should he be, unfortunately, convicted and dismissed as a punishment, his right to retirement would be lost by his own delinquencies, and not in a legal sense by reason of his continuance in service. His suspension was authorized by section 292, p. 124, of the Greater Charter, supra, and such suspension naturally and necessarily carried with it for the time being suspension from the enjoyment of the privileges, as well as from the performance of the duties, incident to the position.

The general provisions of the Greater City Charter relating to the police force indicate a design to form a homogeneous police system, which should preserve to those who have served outside of the territory of the former city of New York such rights as are essential to the claims of justice, without sacrificing the elements of unity and equality. If an intention existed to confer upon a favored class the special privilege claimed by the relator, it should have been manifested by explicit expression. It should not be construed into the law, for its effect would be not only to work injustice upon the other members of the force, but to greatly impair the efficiency of the department as, a whole; for nothing can be imagined more likely to discourage ambition, to destroy discipline, or to stifle stimulus than the creation, of a privileged class among the police, who should be possessed by law of the absolute right to avoid the consequences of violation of duty by the mere voluntary adoption of an honorary retirement, enriched by the enjoyment of a life annuity.

The order should be reversed, and the proceedings dismissed.

Order granting peremptory writ of mandamus reversed, with $10 costs and disbursements, and proceedings dismissed, with costs.

BARTLETT and JENKS, JJ., concur.

HOOKER, J.

In this appeal we are called upon to give construction to parts of two statutes. The charter of the city of Brooklyn (Laws 1888, p. 1007, c. 583, tit. 11, § 42, subd. 6, amending Laws 1877, p. 503, c. 438), treating of the granting of pensions to members of the police force of that city, provides as follows:

> “Any such member of the police force or attaché of said police department who has or shall have performed police duty for a period of twenty years or upwards shall, upon his own application in writing, be retired from service and placed upon the police pension roll, and thereupon shall be awarded, granted and paid from said police pension fund by the trustees thereof an annual sum during his lifetime equal to one-half the full pay of a member of said police force of the rank of the member so retired.”

The question of law raised as to this subdivision is whether a police officer, after a service of 20 years, is entitled absolutely to be retired from service and placed upon the police pension fund roll, even though there are charges pending against him, preferred after the expiration of the 20-year period, and prior to his application in writing for his discharge. We think that this right is indefeasible. *676The language of the statute is plain an"d unequivocal. The words employed are in common use, and are to be taken in their plain and ordinary signification. It has been said that:

> “The words of a statute, if of common use, are to be taken in their natural, plain, obvious, and ordinary signification.” 1 Kent’s Comm. 462.

This language is approved by Judge Gray, speaking for the Court of Appeals, in People ex rel. Bockes v. Wemple, 115 N. Y. 302, 307, 22 N. E. 272, 273, and he adds:

> “It is only where the literal acceptation of the words used will work a mischief, or some absurd result, or where some obscurity in the sense compels it, that we need to resort to extrinsic aids of interpretation. The intent of the Legislature is to be sought, primarily, in the words used, and, if they are free from ambiguity, there is no occasion to search elsewhere for their meaning. As it was said in McCluskey v. Cromwell, 11 N. Y. 593: ‘It is not allowable to interpret what has no need of interpretation, and, when the words have a precise and definite meaning, to go elsewhere in search of conjecture, in order to restrict or extend the meaning. . The natural and obvious meaning should be taken, without resorting to subtle and forced construction.’ ”

The meaning of the words “shall be retired upon his own application in writing,” if construed according to this rule, can carry no other import than that if the police officer has served 20 years, and if while still a member of the force he makes his own application in writing for retirement and a place on the police pension roll, his right to such retirement and place cannot be denied. This must be held to be the evident intention of the Legislature; for, had such intention been otherwise, it is only fair to assume that proper words descriptive of such different intention would have been used. A different intent is shown in other parts of section 42 of title 11 of the enactment of 1888; for it is there provided that in every case mentioned in subdivisions 3, 4, and 5 of the section the police commissioner shall determine the circumstances, and in his discretion may order the retirement and the payment of the pension. - And again in subdivision 8 the commissioner of police and excise is empowered in his discretion to order any pension, or any part thereof, to cease, except as to members of the force who have retired after 20 years’ service; and nothing contained in the section is to render the granting or payment of such pensions obligatory upon the commissioner, or chargeable as a matter of right upon the pension fund, except as provided in subdivision 6, treating of those who have served 20 years. Thus it would seem that the whole scheme of title 11 of the Brooklyn Charter was to render the granting of pensions discretionary with the commissioner, except in the case of those to be granted under the subdivision we are discussing.

The language of similar enactments in the charter of the former city of New York, in force prior to the year 1888, may throw some light upon this question. By section 307, c. 410, p. 80, of the Laws of 1882, relating to the city of New York, it is provided that any member of the police force who had performed duty for a period of 20 years and upwards might, in the discretion of the board of police, by a resolution unanimously adopted by a full board, retire from service and receive a place upon the pension rolls. By chapter 364, *677p. 613, of the Laws of 1885, this section was amended so as to provide that any member of the police; force who has performed duty therein for a period of 20 years or upwards, by his own application in writing, shall “by a resolution adopted by a majority vote of the full board” be dismissed and placed upon the pension roll. These different expressions of language had been used by the Legislature shortly before the passage of the act of 1888; and, had it intended to make a provision as to the then city of Brooklyn similar in these respects to those provisions which were then existing in the former city of New York, it is fair to assume that they would have used the same or - similar language. This is especially true since the case of People ex rel. Tuck v. French, 108 N. Y. 105, 15 N. E. 188, decided in January, 1888, held, under the act of 1885 applicable to the city of New York, that the mere filing of an application by a member of the police force, after a service of 20 years, does not dissolve his connection with the force, and that he remains subject to its authority until the application has been granted by a majority of the board, fixing the pension to be awarded. The charter of the city of Brooklyn was the last chapter of the mth session of the Legislature, and did not receive the approval of the Governor until June 9, 1888. The Legislature had abundant opportunity of being advised of the construction placed upon its former enactments. That it intended a contrary rule for the city of Brooklyn is, we think, thoroughly evidenced by the plain and unequivocal language, differing materially from that it had employed in relation to the neighboring city.

The Tuck Case, and that of People ex rel. Brady v. Martin, 145 N. Y. 253, 39 N. E. 960, in construing the act of 1885, hold that the discretion is vested in the police board, to be exercised upon the application of an officer for dismissal and a place on the pension roll. If the words, “shall by a resolution adopted by a majority vote of the full board be relieved,” etc., call upon the board for the exercise of judicial duty, the mere words, “shall upon his own application in writing be retired,” etc., cannot, we think, be held to confer more than ministerial duty upon the commissioner.

Prior to the taking effect of the Greater New York Charter, this relator had served continuously upwards of 20 years as a member of the police force in the city of Brooklyn, and was taken over into the police force of the greater municipality. On the 7th day of May, 1903, charges were preferred against him, and before the trial of the charges he made his own application in writing, on the nth of that month, to be dismissed from the police force and placed upon the police pension roll. Section 355 of the charter, as amended in 1901 (Laws 1901, p. 154, c. 466), provides partly as follows:

> “Provided, however, that no member of either of the police forces by this act consolidated, having a right to retire upon a pension at the time this act takes effect, shall be deprived of such right by reason of his remaining upon the police force, or of anything in this act contained.”

The second question we are required to pass upon is the construction to be given these words from that section, “having a right to retire upon a pension at the time this act takes- effect.” The appellant contends that this saving clause in the section affected only those *678members of the police force who, having served 20 years, had, prior to the taking effect of the Greater New York Charter, made their applications in writing for dismissal and places on the pension roll. If that construction is correct, then this relator, not having made his application before the act took effect, is to be granted his pension only according to the provisions of the first sentences of section 355, supra, which, as far as this relator is concerned, provide that “any member of the police force who has or shall have performed duty on any such force aforesaid, for a period of twenty-five years, * * * being .of the age of fifty-five years, * * * upon his own application in writing, provided there are no charges against him pending,'must be relieved and dismissed from said force and service by the department and placed on the roll of the police pension fund,” etc.

The construction, however, for which the appellant contends, is, we think, forced in the extreme. At the expiration of his 20 years’ service as a member of the police force of the city of Brooklyn, this relator had “a right to retire upon a pension.” That right was ripe the moment the 20 years expired, and was no less a right the day after the expiration of that period than upon the day it was complete. If the right continued intact and unimpaired for one day, it existed for a year, and until this relator made application on the nth of May, 1903. The language of the section is that “no member, * * * having a right to retire upon a pension at the time this act takes effect, shall be deprived of such right by reason of his remaining upon the police force,” which implies that the right to retire upon a pension shall exist without impairment during the relator’s continuance upon the force.

The relator has shown himself to be within the exception of section 355 of the Greater New York Charter, and therefore within the provisions of the act of 1888; and as we held that under the provisions of that enactment the duties of the commissioner were simply ministerial, and that there vested in the relator an absolute right to dismissal and a place upon the pension roll upon his making proper application in writing, the order of the Special Term should be affirmed, with costs.

GOODRICH, P. J., concurs.