| N.J. | Jun 18, 1923
The opinion of the court was delivered by
The facts and issue in the case are accurately ■ stated in the opinion of the Supreme Court. We concur in the view expressed by that court that the denial in the return to the alternative writ was effectually overcome by the admissions in paragraph 12 of the return, which not only aver the payment to relator of $9,197.88 by the policemen of Atlantic City, but also the retention of “other funds in their hands devoted to the retirement and pension of policemen,” specifying them. This plainly indicates the existence of “a fund for the retirement or pensioning of policemen or firemen, or either, * * * . now in effect,” in the language of section 9
The next point made is, the act of 1920 does not indicate an intent to dissolve the appellant corporation. We think its language is quite broad enough to indicate such intent, as section 7 speaks of “all boards or bodies having control of the same,” and appellant is clearly a “body” having control of a fund for the retiring and pensioning of members of the fire department. But if we err on this point, this would not lead to a reversal because the mandamus is directed, not to the “vacation” of the appellant, but to the transfer of the fund in its hands. Whether the statute has effected a “vacation” is a point not before us in this litigation.
The third point, that the enforcement of the act of 1920 as against the fund in question amounts to the forfeiture and deprivation of vested rights, seems also beside the mark. For present purposes, it may .be assumed, without deciding, that the implication deducible from the case of Pennie v. Reis, 132 U. S. 464 (viz., that a fund produced by voluntary contributions is immune from legislation of this kind), protects the moneys called for by the alternative writ, or such part of them as is the proceeds of voluntary contributions, from application in any other manner than that contemplated by the act of 1905, page 114, and its supplements; but the award of a writ to pay over the money is no determination of this question; it is no more than the change of one legislative trustee for another. The question what is to be done with the money after it is transferred, does not press for solution at this time. The question should a writ of peremptory mandamus go, requiring appellant to pay over to the proper official of the new body created under the act of 1920, the moneys accumulated under the act of 1905, was answered in the affirmative by the Supreme Court, and we concur" in that result for the reasons given above.
The judgment of the Supreme Court on the alternative writ is affirmed.
For reversal — None.