{ "id": 8568259, "name": "LAURIE PRITCHETT, JAMES L. FAGAN and JOHN D. COOK, Petitioners v. PAUL W. CLAPP, HAROLD R. CHEEK, O. H. LEAK, and SAMUEL E. BURFORD, as Members of the Board of Examiners of the High Point Policemen's Pension and Disability Fund, CITY OF HIGH POINT and HIGH POINT BANK AND TRUST COMPANY, Respondents", "name_abbreviation": "Pritchett v. Clapp", "decision_date": "1975-10-07", "docket_number": "No. 85", "first_page": "329", "last_page": "338", "citations": [ { "type": "official", "cite": "288 N.C. 329" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "162 S.E. 2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "274 N.C. 256", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559737 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/274/0256-01" ] }, { "cite": "212 S.E. 2d 381", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "286 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568958 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/286/0488-01" ] } ], "analysis": { "cardinality": 682, "char_count": 20951, "ocr_confidence": 0.593, "pagerank": { "raw": 6.770845263994211e-08, "percentile": 0.41136741949047995 }, "sha256": "182491700f3ae61dabaca6c16f54ad22814a5fad2f502bcb56f0685b8234703a", "simhash": "1:5d04d27f2a9de19b", "word_count": 3481 }, "last_updated": "2023-07-14T18:59:08.487022+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LAURIE PRITCHETT, JAMES L. FAGAN and JOHN D. COOK, Petitioners v. PAUL W. CLAPP, HAROLD R. CHEEK, O. H. LEAK, and SAMUEL E. BURFORD, as Members of the Board of Examiners of the High Point Policemen\u2019s Pension and Disability Fund, CITY OF HIGH POINT and HIGH POINT BANK AND TRUST COMPANY, Respondents" ], "opinions": [ { "text": "SHARP, Chief Justice.\nThis appeal presents these questions: Did N. C. Sess. Laws, ch. 282 (1973) incorporate the disability retirement benefits of G.S. 128-27 (c) into Section 3 of the Act in addition to the service retirement benefits of G.S. 128-27 (a) ? If so, does Section 4 of the Act now provide an additional benefit to a member who is disabled from injury sustained in the actual performance of his duties, or is Section 4 in conflict with Section 3, as amended, and therefore repealed by Section 7 of Chapter 282?\nRespondent-appellants contend that repeals by implication are not favored, and the legislature manifested its intent to amend Section 3 only with reference to service retirement benefits by its failure to repeal or to mention Section 4. They also contend that the trial judge erred in passing upon the constitutionality of Section 4 when that question was not raised by the parties. Petitioner-appellees make the same contentions here which they made on appeal to the superior court.\nAs an aid to construction we first consider the history of the Act. As originally enacted by N. C. Sess. Laws, ch. 496 (1955), Section 3 of the Act specified the benefits which members \u201celigible for retirement from service\u201d were entitled to receive \u201cupon retirement or dismissal.\u201d\nSection 4 of the Act authorized the Board to pay a monthly disability allowance \u2014 the amount to be determined by the Board \u201cin its sole discretion\u201d within specified m\u00e1ximums \u2014 for any full-time paid member of the High Point Police Department \u201cdisabled from injury sustained in the active performance of his duties,\u201d and found by the Board \u201cto be unable to work as a policeman. . . .\u201d In its sole discretion the Board could also \u201crefuse to make payment in any amount in any case. . . .\u201d\nSubsequent to 1955 the Act was amended by the enactments listed in the preliminary statement. Until 1973 these amendments involved only changes in the contributions which members of the police force were required to make to the Fund and in the monthly benefits specified by sections 3 and 4. However, after the General Assembly rewrote Section 3 of the Act in 1973, any full-time member of the High Point Police Department, \u201cupon his retirement from service\u201d became entitled to receive benefits \u201cequal to those he would have received based upon his eligibility under the provisions of Chapter 128 of the General Statutes governing the North Carolina Local Governmental Employees Retirement System . . . had he been a member of that retirement system.\u201d The 1973 enactment (Ch. 282, \u00a7 1) also rewrote Section 1(c) of the Act to provide (1) that the monthly deductions from the pay check of every member of the fund \u201cshall at all times conform to the provisions of the North Carolina Local Governmental Employees Retirement System\u201d; and (2) that the city of High Point shall contribute to the Fund on the same basis it contributes to the State Retirement System for its other employees.\nThe 1973 revision of Section 3 of the Act unequivocally states the legislative intent (1) that any full-time member of the High Point Police Department shall make the same contribution to the Fund which members of the State Retirement System make, and (2) that, upon the termination of his service, a member shall receive from the Fund the same service and disability retirement benefits a member of the State Retirement System with his eligibility would receive from the State Retirement Fund. Thus, we hold that \u201cbenefits,\u201d as that term is now used in Section 3 of the Act, means the benefits specified in G.S. 128-27, which, inter alia, provides for both service retirement benefits (G.S. 128-27(a)) and unrestricted disability retirement benefits to qualified members (G.S. 128-27 (c)). Under the latter section, a member\u2019s entitlement to disability benefits is not limited to disability resulting from injury sustained in the actual performance of his duties as a policeman as it was under Section 4 of the Act.\nHad the General Assembly, when it rewrote Section 3 in 1973, intended to limit Section 3 benefits to service retirement benefits under G.S. 128-27 (a), it is inconceivable that it would not have restricted the term benefits. It would have modified that term by the adjective phrase \u201cservice retirement\u201d or it would have specifically excluded disability benefits under G.S. 128-27 (c) just as it excluded \u201cemployer providing lump sum death benefit.\u201d Further, the use of the all-embracing phrase \u201ctermination from service\u201d as rewritten in Section 3 of the Act manifests the legislative intent to encompass any cessation of employment. It includes resignation, discharge, disability and service retirement.\nIt is quite true, as heretofore pointed out, that when Section 3 was rewritten in 1973, Chapter 282 made no reference to Section 4 of the Act. However, by Section 7, Chapter 282 repealed \u201call laws and clauses of laws in conflict with the provisions of this Act.\u201d In our view Section 4 is totally inconsistent with the 1973 revision of Section 3 of the Act and it was, therefore, repealed by Section 7 of Chapter 282, quoted above. Of course, a clause specifically repealing Section 4 would have been preferable, but sometimes even Solons nod. Sections 3 and 7 of Chapter 282 leave no doubt that the legislative purpose was to give High Point policemen retirement benefits equal to those provided by the State Retirement System and no more. We do not for a moment entertain the idea that the legislature ever intended to provide discretionary disability benefits under Section 4 for a member injured in the line of duty in addition to disability benefits under G.S. 128-27 (c).\nThus, we hold that this Section (N. C. Sess. Laws, ch. 496, \u00a7 4 (1955)), as amended, was repealed by N. C. Sess. Laws, ch. 282 \u00a7 7 (1973). Our conclusion that this was the intent of the General Assembly is bolstered by its enactment of N. C. Sess. Laws, ch. 691 (1975) (effective 25 June 1975). Section 5 of this enactment specifically repealed Section 4 of the Act, and Section 4 of the 1975 enactment amended Section 3 of the Act so that the Act now specifically provides benefits, \u201cincluding both service retirement and disability retirement.\u201d Where the Act amended is ambiguous, the amendment \u201cmay be resorted to for the discovery of the legislative intention in the enactment amended.\u201d Taylor v. Crisp, 286 N.C. 488, 212 S.E. 2d 381 (1975) ; Childers v. Parker\u2019s, Inc., 274 N.C. 256, 162 S.E. 2d 481 (1968).\nOur construction of N. C. Sess. Laws, ch. 282 (1973) makes it unnecessary to decide whether the judge correctly considered or decided the constitutionality of Section 4 of the Act.\nFor the reasons stated herein the judgment of the Superior Court is\nAffirmed.", "type": "majority", "author": "SHARP, Chief Justice." } ], "attorneys": [ "Haworth, Riggs, Kuhn and Haworth for 'petitioner ap-pellees.", "Knox Walker for respondent appellants." ], "corrections": "", "head_matter": "LAURIE PRITCHETT, JAMES L. FAGAN and JOHN D. COOK, Petitioners v. PAUL W. CLAPP, HAROLD R. CHEEK, O. H. LEAK, and SAMUEL E. BURFORD, as Members of the Board of Examiners of the High Point Policemen\u2019s Pension and Disability Fund, CITY OF HIGH POINT and HIGH POINT BANK AND TRUST COMPANY, Respondents\nNo. 85\n(Filed 7 October 1975)\n1. Pensions\u2014 policemen\u2019s pension and disability fund \u2014 benefits defined \u2014 disability benefits unrestricted\n\u201cBenefits,\u201d as that term is used in Section 3 of the Act establishing the High Point Policemen\u2019s Pension and Disability Fund, means the benefits specified in G.S. 128-27, which, inter alia, provide for both service retirement benefits (G.S. 128-27(a)) and unrestricted disability retirement benefits to qualified members (G.S. 128-27(c)), and under the latter section, a member\u2019s entitlement to disability benefits is not limited to disability resulting from injury sustained in the actual performance of his duties as a policeman.\n2. Pensions\u2014 policemen\u2019s pension and disability fund \u2014 benefits same as for State Retirement System\nIn revising Section 3 of an Act to establish the High Point Policemen\u2019s Pension and Disability Fund, the General Assembly intended to give High Point policemen retirement benefits equal to those provided by the State Retirement System but did not intend to provide discretionary disability benefits for a member injured in the line of duty in addition to disability benefits under G.S. 128-27 (c); therefore, Section 4 of the Act providing for such discretionary disability benefits, which was inconsistent with the 1973 revision of Section 3 of the Act, was repealed by Section 7 of the 1973 revision which repealed \u201call laws and clauses of laws in conflict with the provisions of this Act.\u201d'\nAppeal by defendants from Rousseau, J., 23 December 1974 Session of Guilford County Superior Court, certified for initial appellate review by the Supreme Court of North Carolina pursuant to G.S. 7A-31(a), docketed and argued as Case No. 81 at the Spring Term 1975.\nThis is a proceeding to obtain judicial review of orders of the Board of Examiners (Board) of the High Point Policemen\u2019s-Pension and Disability Fund (Fund) denying the application of petitioner Pritchett for disability retirement benefits and terminating benefits previously awarded petitioners Fagan and Cook. The material facts are admitted.\nThe Fund was established by N. C. Sess. Laws, ch. 496 (1955). This Act was thereafter amended by N. C. Sess. Laws, ch. 825 (1957) ; N. C. Sess. Laws, ch. 133 (1959) ; N. C. Sess. Laws, ch. 761 (1971) ; and N. C. Sess. Laws, ch. 282 (1973). The 1955 Act, as amended through 1973, will be hereinafter referred to as the Act.\nPetitioners Pritchett, Fagan, and Cook are retired employees of the High Point Police Department. Under Section 5 of the Act, the individual respondents, by virtue of their respective positions, are members of the Board. Paul W. Clapp is Mayor of the City of High Point; Harold R. Cheek is City Manager; Samuel E. Burford is a member of the City Council; and O. H. Leak is the member of the Police Department elected to the Board. Also named as respondents are the City of High Point (admitted to be \u201ca real party in interest\u201d) and the High Point Bank and Trust Company, the custodian of the Fund.\nEach of the petitioners, at the time of his retirement or application for benefits under the Act, had theretofore been a full-time, paid member of the High Point Police Department with more than five years of creditable service in that capacity, and, had made the contributions to the Fund as required by the Act.\nIn May 1973 petitioner Fagan applied to the Board for \u2022disability retirement benefits because of injuries sustained in \"the performance of his official duties. On or about 1 July 1973 the Board found that Fagan was entitled to receive disability benefits in the amount of $450.45 per month. This sum was paid \"to him until 22 November 1974.\nIn October 1973 petitioner Cook applied to the Board for retirement benefits on account of disability which did not result from injuries sustained in the actual performance of his \u2022duties as a policeman. The Board found Cook entitled to disability retirement benefits in the amount of $434.08, and he received this sum each month until 22 November 1974.\nOn 4 November 1974 petitioner Pritchett applied for disability retirement benefits upon his retirement as chief of police of the City of High Point. On 22 November 1974 the Board denied Pritchett\u2019s application for disability retirement on the ground \u201cthat the present pension plan of the High Point Police Department does not cover general disability, but only disability from an injury resulting in the actual performance of duty,\u201d and Chief Pritchett has not \u201csuffered from an injury incurred in the actual performance of duty.\u201d\nAt the time the Board denied benefits to Pritchett it suspended payments to Fagan and Cook \u201cuntil such time as full \u25a0determination is made of their eligibility to receive payments.\u201d\nIn order to understand the present controversy, the history \u2022of the Act must be examined in some detail. Prior to 27 April 1973 the right of a member of the High Point Police Department to receive retirement benefits from the Fund was determined by Sections 3 and 4 of the Act which then read as follows:\n\u201cSec. 3. Any person, who is a full-time paid member of the High Point Police Department as shown by the records of the City of High Point at the time of the ratification of this act, \u2022or who becomes a full-time paid member thereof after the ratification of this act, and has or shall have a service record of twenty years as full-time paid member of said department and has or shall have reached the age of fifty-five years, or has \u2022or shall have attained the age of sixty-five, regardless of the length of his service, shall be eligible for retirement from service in the Police Department of the City of High Point and upon retirement or dismissal from the department shall receive. . . . [specified benefits]\u201d (Emphasis added.)\n\u201cSec. 4. In the event any full-time paid member of the High Point Police Department shall hereafter become, in the opinion of the Board of Examiners, disabled from injury sustained in the actual performance of his duties, and is found by the Board of Examiners to be unable to work as a policeman, he shall receive each month from said Pension Fund during such disability whatever portion of the salary paid him by the City of High Point that the Board of Examiners, in its sole discretion, shall find that he is entitled to receive, after taking into consideration the nature and extent of his disability, his length of service prior to his disability, his income and compensation from all other sources, whether received directly or indirectly, the amount of the Pension Fund, and his ability to earn an income from any other source: Provided, that in no event shall the amount paid under this section exceed $100.00 per month. Provided, further, that in no event shall any compensation be paid him under this Section during such time as his income and compensation from any other source shall equal or exceed the salary paid him by the City of High Point at the time of his disability; and it is further the true intent, meaning and pur-pdse of this act that the Board of Examiners shall be empowered hereunder, in its discretion, to pay any amount less than the maximum enumerated, and said board may refuse to make payment in any amount in any case in any or all the classes herein enumerated under this Section.\u201d\nSection 3 of the Act was rewritten by N. C. Sess. Laws, ch. 282, \u00a7 2 (1973), effective 27 April 1973. The section as amended governed petitioners\u2019 rights to benefits on 22 November 1974. It provides:\n\u201cSec. 3. Any person who is a full-time member of the High Point Police Department as shown by the records of the City of High Point at the time of the ratification of this act, or who becomes a full-time paid member thereof after the ratification of this act, shall, upon his termination from service, be entitled to receive benefits equal to those he would have received based upon his eligibility under the provisions of Chapter 128 of the General Statutes governing the North Carolina Local Governmental Employees Retirement System, as amended from time to time, had he been a member of that retirement system, exclusive of an employer providing lump sum death benefit. Post retirement benefit increases shall not apply to members retired prior to the ratification of this act except at the discretion of the Board of Examiners.\u201d (Emphasis added.)\nAlthough Section 3 was almost completely rewritten by Chapter 282, that Chapter did not mention Section 4 of the Act quoted above. Section 7 of Chapter 282, however, repealed \u201call laws and clauses of laws in conflict with the provisions\u201d of that Chapter.\nObviously Article 3 of the Act, as amended in 1973, purports to provide that a full-time policeman of High Point is, upon his termination from service, entitled to benefits equal to those he would have received under the statutes regulating the North Carolina Local Governmental Employees Retirement System (State Retirement System) had he been a member of that system. Therefore, certain sections of the statutes regulating the State Retirement System (found in N. C. Gen. Stat., ch. 128, art. 3) are relevant to decision here. These are set forth below:\n\u201c\u00a7 128-21(19) \u2018Retirement\u2019 shall mean withdrawal from active service with a retirement allowance granted under the provisions of this Article. ...\u201d\n128-27. Benefits.\u2014 (a) Service Retirement Benefits.\u2014 COO\n(1) Any member in service may retire upon -written application to the Board of Trustees setting forth at which time, not less than 30 days nor more than 90 days subsequent to the execution and filing thereof, he desires to be retired: Provided, that the said member at the time so specified for his retirement shall have 30 years of service or shall have attained the age of 60 years, or if a uniformed policeman or fireman he shall have attained the age of 55 years, and notwithstanding that, during such period of notification, he may have separated from service.\u201d (\u00a7 128-27 (b4)) details the method of computing the service retirement allowances for members retiring on or after 1 July 1973.)\n\u201c\u00a7 128-27 (c) Disability Retirement Benefits. \u2014 Upon the application of a member or of his employer, any member who has had five or more years of creditable service may be retired by the Board of Trustees, on the first day of any calendar month, not less than 30 and not more than 90 days next following the date of filing such application, on a disability retirement allowance: Provided, that the medical board, after a medical examination of such member, shall certify that such member is mentally or physically incapacitated for the further performance of duty, that such incapacity was incurred at the time of active employment and has been continuous thereafter, that such incapacity is likely to be permanent, and that such member should be retired.\u201d (\u00a7 128-27 (d3)) details the method of computing the disability retirement benefits of persons retiring on or after 1 July 1971.)\nWhen the Board entered its orders on 22 November 1974 denying and terminating their benefits, petitioners promptly sought judicial review in the Superior Court of Guilford County. In their petition they contended:\n(1) N. C. Gen. Stat., ch. 128, art. 3, which Section 3 of the Act incorporates, specifically provides for both service retirement benefits and disability benefits which are not limited to disability resulting from injuries sustained in the performance of police duties. (2) Section 3 of the Act, which now determines his right to periodic benefits, declares without restriction or limitation that upon his termination from service he is entitled to receive the same benefits to which a member of the State Retirement System with \u201chis eligibility\u201d would be entitled. (3) Section 4 of the Act, which provided for the discretionary payment of benefits to members disabled in the performance of duty, is inconsistent with Section 3 of the Act as rewritten in 1973. Section 4 was, therefore, repealed by Section 7 of Chapter 282. (4) The Board acted arbitrarily and in disregard of law in denying Pritchett\u2019s application and in suspending the benefits previously allowed Fagan and Cook.\nWhen this cause came on to be heard, Judge Rousseau, after marshaling the admitted facts as his findings, made the following conclusions of law: (1) Under Section 3 of the Act all members of the Fund are entitled to all retirement benefits for which G.S. 128-27 provides, including the disability retirement benefits specified in G.S. 128-27 (c). (2) Section 4 of the Act violates the equal protection clauses of both the State and Federal Constitutions in that it provides no \u201cacceptable standards\u201d for de-terming the benefits \u201cto which members of the Fund injured in the actual performance of duties\u201d would be entitled, and would permit unequal and arbitrary payment of benefits. (3) The Board\u2019s action in suspending the payment of disability retirement benefits to Fagan and Cook and in denying Pritchett\u2019s application was illegal.\nBased upon the foregoing conclusions, Judge Rousseau entered judgment remanding the matter to the Board with directions that it (1) \u201cdetermine Pritchett\u2019s application for disability-retirement benefits upon its merits\u201d pursuant to the provisions of the Act and G.S. 128-27; (2) reinstate the disability retirement benefits to which it had previously determined Fagan and Cook entitled and continue paying such benefits \u201cuntil such time as it shall be determined that he is otherwise subject to an increase or decrease in such benefit\u201d; and (3) pay Fagan and Cook each in a lump sum the total of all monthly benefits withheld by the action of the Board on 22 November 1974.\nFrom the foregoing judgment respondents appealed to the Court of Appeals. Upon the petition of both appellants and ap-pellees, we certified the cases for initial appellate review by the Supreme Court.\nHaworth, Riggs, Kuhn and Haworth for 'petitioner ap-pellees.\nKnox Walker for respondent appellants." }, "file_name": "0329-01", "first_page_order": 349, "last_page_order": 358 }