Brady v. Ret. Bd. of Brockton

• Decision Date: 03 June 1947
• Citation: 73 N.E.2d 609,321 Mass. 371
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: BRADY v. RETIREMENT BOARD OF BROCKTON et al.

321 Mass. 371

73 N.E.2d 609

BRADY

v.RETIREMENT BOARD OF BROCKTON et al.

Supreme Judicial Court of Massachusetts, Plymouth.

June 3, 1947.

Suit by James L. Brady against the Retirement Board of Brockton and others for a declaratory judgment. From a decree dismissing the bill, complainant appeals.

Affirmed.Appeal from Superior Court, Plymouth County; Dillon, Judge.

Before FIELD, C. J., and QUA, DOLAN, WILKINS, and SPALDING, JJ.

L. E. Crowley, of Brockton, for plaintiff.

H. C. Gill, City Sol., of Brockton, for defendants.

WILKINS, Justice.

In this bill in equity for a declaratory judgment brought pursuant to G.L. (Ter.Ed.) c. 231A, inserted by St.1945, c. 582, § 1, by a supervisor of school janitors in the employ of the city of Brockton against the members of the retirement board and the treasurer of that city and against the city itself, the plaintiff prays for an adjudication that he is not a member of the contributory retirement system and for other relief. The case was heard on agreed facts by a judge who made findings and ordered the bill dismissed. From a final decree dismissing the bills, the plaintiff appealed.

On June 1, 1946, the plaintiff, who had been employed since 1927 ‘as a school janitor or custodian,’ was promoted by the school committee from a civil service list, after a competitive examination, to a position designated as ‘supervisor of school janitors.’ On January 6, 1920, the city had accepted St.1919, c. 143, providing for noncontributory pensions for school janitors. See now G.L.(Ter.Ed.) c. 32, § 44, as appearing in St.1936, c. 223, as amended by St.1937, c. 102, § 1. During his employment as janitor, the plaintiff, as a member of the noncontributory pension system of the city, was entitled to the benefits of that statute. Prior to June 30, 1937, the city had accepted the provisions of the contributory retirement law, which has been in effect in the city since July 1, 1937. See G.L.(Ter.Ed.) c. 32, as amended. Upon assuming the duties of supervisor of janitors, the plaintiff was informed by the retirement board by letter dated June 20, 1946, that because of his promotion he must become a member of the contributory retirement system, and that he could appeal from its decision to the contributory retirement appeal board, G.L.(Ter.Ed.) c. 32, § 16(4), as appearing in St.1945, c. 658, § 1. The plaintiff immediately notified the retirement board that he claimed to be entitled to the benefits of the noncontributory pension provided for in G.L. (Ter.Ed.) c. 32, § 44, as amended, and has continued to make protest both orally and in writing. The plaintiff has not made written application to join the contributory retirement system, has not signed a waiver of any right to a noncontributory pension under G.L.(Ter.Ed.) c. 32, § 44, as amended, and has not consented to any deduction from his wages on account of the contributory retirement system.

The plaintiff's predecessor as supervisor of school janitors was one Lyon, who had held the position since before the acceptance of the contributory retirement law. Lyon ‘had continuously occupied said position until his retirement in 1946 as a member of the noncontributory pension system. * * * The supervisor of school janitors has no power to hire or discharge other employees or to assign other employees to the various school buildings or to regulate hours, wages, vacations, or working conditions or to discipline, punish or penalize any other employee, all such powers being reserved to the superintendent of schools or the school committee. The principal duties of the supervisor of school janitors are the distribution of school supplies to the various schools, seeing to it that the fuel supplies at the schools are maintained properly by the highway department * * * the reporting of conditions and infractions of the rules to the superintendent of schools, instructing new janitors in their duties and performing the duties of any janitors absent because of illness or other cause. The supervisor is actually a ‘working foreman.”

In his ‘findings and order’ the judge ruled that by reason of his promotion the plaintiff was obliged to join the contributory retirement system; and that his failure to appeal from the decision of the retirement board of the retirement appeal board is a bar to the present proceedings.

The judge's ruling that because of his promotion the plaintiff was obliged to join the contributory retirement system was undoubtedly based upon G.L. (Ter.Ed.) c. 32, § 3(2), (a), as appearing in St.1945, c. 658, § 1, which provides: ‘Membership in a system as a member in service * * * shall comprise * * * (iii) Any person who hereafter resigns, transfers or is promoted from a position in the service under which he had inchoate rights to a non-contributory pension under this chapter or under corresponding provisions of earlier laws or of any other general or special law, to accept a position subject to the provisions of sections one to twenty-eight inclusive, if at the time of such resignation, transfer or promotion he is under the...