Opinion
Submitted February 16, 1934 —
Decided May 4, 1934.
On appeal from the Supreme Court, in which Mr. Justice Case filed the following opinion:
"The writ of certiorari brings up for review the resolution of the Policemen's and Firemen's Pension Fund Commission of the city of Elizabeth awarding a pension to Sarah E. Lavin upon the death of Charles Lavin, a retired member of the police force of the city of Elizabeth, and a son of Sarah E. Lavin. At the time of Charles Lavin's death, March 20th, 1933, he had no wife, and his only child was a son above the age of sixteen years. The pension was awarded under Pamph. L. 1920, ch. 160, § 3; 2 Cum. Supp. Comp. Stat., p. 2377, which provides that `in case there is no widow and no children under the age of sixteen years, then such pension shall be paid to the sole dependent parent of such deceased member.' Counsel argue upon the meaning to be given the word `sole.' The attorney for the prosecutor contends that the word is to be given the significance of `solely,' as though the reading was `the parent dependent solely upon such deceased member.' The attorney for the defendants argues that the word means `single' or `solitary,' as though the phrase read `to be paid to the dependent parent of such deceased member if there be but one such dependent parent.' I suggest a third possible construction, which is that the word `sole' is intended to modify the word `dependent,' and that whether there be one parent or two parents the purpose is to benefit the parent or parents if there are no other surviving persons classed by the statute as dependents. I am inclined to think that the legislature did not intend to provide that there should be relief if there were but one dependent parent but no relief if both parents survived and both were dependent; this, first, because such a purpose seems to lack reason, and, second, the provisions in the preceding police pension acts ran to the benefit of both parents under like circumstances and there is no clear indication of a purpose to change that plan. However, I find it unnecessary to decide the question.
"Mrs. Lavin was the sole parent surviving, and she was the sole surviving person within the dependent classes designated in the statute. I find also that under the evidence she was solely dependent upon her son Charles. Upon the death of Charles Lavin's wife in 1918 Charles Lavin, left with a three-year-old child, requested his mother to come to his home and manage his household. That the mother did and continued to do from that time forward. Later Edward J. Lavin, another son of Sarah E. Lavin, came to the house and boarded, paying $15 per week board. Still later Edward J. Lavin married and with his wife continued to board with Sarah E. Lavin, paying her $30 per week board. Mr. and Mrs. Edward J. Lavin now have three small children and all board with Sarah E. Lavin, paying the same sum of $30 per week, varying neither upward nor downward. The sums contributed by Charles Lavin were always as much as, and usually more than, the amounts paid by Edward. Charles regularly paid to his mother whatever sums were necessary to make up the household budget, including the rent. In 1929 when Charles made application for his retirement pension, he certified that he had two dependents, his son, Charles Lavin, Jr., then fourteen years of age, and his mother, Sarah E. Lavin, and that both of these persons depended solely upon him for support. I am satisfied that the fixed sum paid periodically by Edward J. Lavin does no more than pay the prorated proportion of the household expense chargeable against Edward, his wife and his three children, and that Mrs. Sarah E. Lavin was a dependent upon Charles within the meaning of the statute. Mrs. Lavin has in addition to Edward two surviving children, daughters, both married, one of them in indigent circumstances and the other non-contributing. It is not made apparent that Edward is able to contribute towards his mother's support.
"Upon the foregoing finding of facts I conclude that the determination of the pension commission ought not to be disturbed. It will be affirmed, with costs."
For the appellant, James T. Kirk.
For the respondent Sarah E. Lavin, Samuel Koestler.
The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Case in the Supreme Court.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, LLOYD, BODINE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, DILL, JJ. 15.
For reversal — None.