The opinion
Heher, J.
(dissenting). The outstanding policy of the original statutory provision was to curtail the “duplication” of benefits. The amendment of 1952 was in furtherance and not in derogation of the principle. The act of 1948, N. J. 8. A. 43 :21-30, directed that the disability benefits therein provided shall be reduced “by the amount of any primary insurance benefits which are being paid to such individual under Title II of the Federal Social Security Act, and by the amount of any payments of annuities, pensions or permanent disability benefits or allowances under a policy or program of an employer from whose service he has been retired, in accordance with such regulations as the commission shall prescribe.” The amendment, L. 1952, c. 190, provides that such disability benefits shall be reduced “by the amount paid concurrently under any governmental or private retirement, pension or permanent disability benefit or allowance program to which his most recent employer contributed on his behalf.”
The absence of specific mention of Title II of the Federal Social Security Act in the amendment of 1952 does not signify a different treatment of benefits of this class. Under the act of 1948, the prescribed reductions were in two categories : first, “any primary insurance benefits” payable under Title II of the Federal Social Security Act; second, payments of annuities, pensions or permanent disability benefits or allowances “under a policy or program of an employer *592 from whose service he has been retired.” The amendment enlarged the deductible class to include “concurrent” payments “under any governmental or private retirement, pension or permanent disability benefit or allowance program to which his most recent employer contributed on his behalf.” Thus, the amendment is in terms embracive of all “governmental” and “private” retirement, pension or permanent disability benefit or allowance programs. The amendment broadened the provision to include governmental benefits of the given classes, benefits not within the provision of the earlier statute, save those payable under the Social Security Act. And so there was no need to make specific mention of social security benefits, and no suggestion of exclusion from the deductible category by such omission, for social security benefits are within the generic class.
The obvious policy is the key to the understanding of the provision; and the interpretive process is controlled accordingly. “Of two constructions, either of which is warranted by the words of the amendment of a public act, that is to be preferred which best harmonizes the amendment with the general tenor and spirit of the act amended.” Lewis’ Sutherland Statutory Construction (2d ed.), section 489, citing Griffin’s Case, Chase’s Dec. 364. In view of the general purport of the amendment, a purpose to exclude social security benefits from the particular class should be expressed in clear and indubitable terms and not left to surmise or conjecture. Hoffman v. Hock, 8 N. J. 397 (1953).
In affirming the constitutional sufficiency of the Federal Social Security Act, Justice Cardozo said that the benefits thus provided “are of two types, first, monthly pensions, and second, lump sum payments, the payments of the second class being relatively few and unimportant.” Helvering v. Davis, 301 U. S. 619 , 57 S. Ct. 904 , 81 L. Ed. 1307 (1936). And Justice Reed observed that the purpose of the Federal Old Age Benefits of the Social Security Act “is to provide funds through contributions by employer and employee for the decent support of elderly workmen who have ceased to labor.” *593 Social Security Board v. Nierotko, 327 U. S. 358 , 66 S. Ct. 637 , 90 L. Ed. 718 (1945).
But if it be assumed that social security benefits are not within the statutory term “pension” program, they are yet payments made under a governmental “allowance program.” The words “permanent disability” qualify benefit,” the word in immediate association, and not the subsequent word “allowance,” separated as they are by the disjunctive “or.” To hold that the modification covers both “benefit” and “allowance” would be to deprive “allowance” of any real significance or meaning.
And I join in the dissent of Chief Justice Vanderbilt.
I would reverse the determination of the Board of Review.
For affirmance—Justices Oliphant, Wacheneeld, Bur-ling, Jacobs and Brennan—5.
For reversal—Chief Justice Vanderbilt, and Justice Heher—2.