Davis v. School Committee of Somerville

• Citation: 307 Mass. 354,30 N.E.2d 401
• Parties: HAZEL M. DAVIS v. SCHOOL COMMITTEE OF SOMERVILLE.
• Decision Date: 25 November 1940
• Court: United States State Supreme Judicial Court of Massachusetts

307 Mass. 354

30 N.E.2d 401

HAZEL M. DAVIS v. SCHOOL COMMITTEE OF SOMERVILLE.

Supreme Judicial Court of Massachusetts, Middlesex.

November 25, 1940

February 13, 1939.

Present: FIELD, C.

J., DONAHUE, QUA DOLAN, & COX, JJ.

Retirement. School and School Committee.

Words, "Head of a department.

"

The provisions of paragraph (2) of Section 37C of G. L. (Ter. Ed.) c. 32 in the form appearing in Section 2 of St. 1938, c. 439, that the "head of a department, county commissioners, mayor or selectmen, as the case may be" shall furnish to the retirement board of a retirement system a summary of facts relating to the removal or discharge of a member, do not apply to the teachers' retirement system.

PETITION, filed in the Supreme Judicial Court for the county of Middlesex on November 21, 1938, for a writ of mandamus.

The case was reported, without decision, by Donahue, J. R. J. Muldoon City Solicitor, for the respondents.

R. L. Lurie, for the petitioner.

DONAHUE, J. The petitioner seeks the issuance of a writ of mandamus to restore her to active service as a teacher in the public schools of the city of Somerville. The respondents are the school committee of that city. The case was heard by a single justice of this court on the petition and an answer in the nature of a demurrer which admitted the material allegations of fact contained in the petition and asserted that the facts appearing in the petition were not sufficient to warrant the issuance of a writ of mandamus. The single justice, without making a decision, reported the case for the determination of the full court.

1. The following are all the facts alleged in the petition. The petitioner had been employed as a teacher in the public schools of the city of Somerville since December, 1919, and had been holding such position since 1922 on tenure at the discretion of the school committee, under the provisions of G. L. (Ter. Ed.) c. 71 Section 41. On September 26, 1938, the school committee voted to dismiss the petitioner, as of September 30, 1938, at the close of school, and notified the petitioner to that effect by a letter dated September 28, 1938. Before the employment of the petitioner as a teacher in the Somerville schools, she was employed as a teacher in the public schools of the town of Acton in this Commonwealth. The petition alleges that she "therefore comes within the provisions of" G. L (Ter. Ed.) c. 32, Section 37C, paragraph (2) in the form appearing in St. 1938, c. 439, Section 2, "and has completed more than twenty years of creditable service as a member of the Teachers Retirement Association."

The petition alleges that the school committee has failed to comply with the provisions of the statute above referred to "in that it did not furnish the teachers' retirement board within five days after her dismissal on September 30, 1938, with a fair summary of the facts relating to such removal or discharge with the result that her removal or discharge became null and void and, under the terms of the statute" the petitioner "was forthwith to be restored to active service without loss of compensation."

The petitioner further alleges that she made a written demand on the respondents for restoration to active service as a teacher, that her demand was refused and that the respondents have failed to comply with the provisions of the statute above mentioned.

2. The circumstances attendant on the dismissal of the petitioner do not appear.

The causes or reasons of the dismissal, the procedure followed by the school committee in dismissing the petitioner or the propriety of the vote of removal, is not here involved. The contention of the petitioner simply stated is, that the statute, G. L. (Ter. Ed.) c. 32, Section 37C, paragraph (2) in the form appearing in St. 1938, c. 439, Section 2, applies to members of the teachers' retirement system, that it required the school committee to give a notice of the dismissal of the petitioner to the teachers' retirement board within five days after the act of the committee dismissing her, that no such notice was given and that, therefore, by the provisions of the statute, the dismissal of the petitioner was null and void. The respondents contend that the provisions of the statute on which the petitioner relies, though applicable to members of the State retirement system, the county retirement system and the retirement system for cities and towns, are not applicable to members of the teachers' retirement system.

3. The Legislature has established four retirement systems, applicable respectively to employees of cities and towns (St. 1910, c. 619), to employees of the State (St. 1911, c. 532), to employees of counties (St. 1911, c. 634), and to teachers (St. 1913, c. 832). In General Laws (1921) the statutory provisions applying to the four retirement systems were placed in c. 32 which was entitled "Retirement Systems and Pensions," and statutes pertaining to the four systems with their amendments were grouped under the respective headings: "State Retirement System," "Retirement System for Teachers," "County Retirement Systems," and "Retirement Systems for Cities and Towns.

" There was the further heading "General Provisions" under which were placed certain statutory provisions applicable to two or more of the four retirement systems. All of the statutes there placed do not apply to all of the four systems. The same arrangement of the statutes relating to retirement systems was followed in the Tercentenary Edition of the General Laws (1932).

The statutes relating to each of the four retirement systems provide for the establishment of retirement systems for employees of the State, the counties, cities and towns and for teachers. They set out the requirements as to eligibility to membership, and the circumstances in which members of each system become entitled to a retirement allowance. The statutes pertaining to each retirement system provide that it shall be managed by a board of retirement comprised of three members. One member of the retirement board must be, in the State retirement system, the State treasurer, in the teachers' retirement system, the commissioner of education, in the county retirement system, the county treasurer, and in the retirement system for cities and towns, the city or town auditor or accountant or an officer having similar powers and duties. A second member of the retirement board in the State, school, and county systems is elected by the members of those systems and in the system for cities and towns is appointed by the mayor or selectmen. A third member of the board of retirement of each of the first three systems mentioned is elected by the other two members. (G. L. [Ter. Ed.] c. 10, Section 18; c. 15, Section 16; c. 32, Section 23; c. 32, Section 31F [St. 1936, c. 318, Section 1].) Included in the powers of the retirement board in each system are the rights to make by-laws and regulations consistent with law and to determine the percentage of their wages that employees or teachers shall contribute to the retirement fund. While the statutes creating the four retirement systems have a general resemblance, they differ one from the other in various respects.

4. The question here in controversy is whether paragraph (2) of Section 37C of G. L. (Ter. Ed.) c. 32 (inserted by St. 1936, c. 318, Section 3, and amended by St. 1938, c. 439, Section 2) applies to a member of the teachers' retirement system.

Paragraph (2) provides that if a member of a stated age and term of service "is removed from his office or employment for the good of the service or is discharged, he shall be retired with a retirement allowance," which is described, "provided, that the appropriate retirement board shall find that the removal of the member will be for the good of the service or that his discharge was not the result of moral turpitude; and provided, further, that such member shall, within ten days following his removal or discharge, have filed a written application for a hearing and that after due notice a hearing shall have been held thereon . . . but in no event later than thirty days after the date of the receipt of such application. The head of a department, county commissioners, mayor or selectmen, as the case may be, shall, within five days after such removal or discharge, furnish said retirement board with a fair summary of the facts relating to such removal or discharge, and said summary shall be open to inspection by the member or a person designated by him in writing. Failure of the head of a department, the county commissioners, mayor or selectmen, as the case may be, to furnish the board with such summary of facts within said five days, or a finding by the board that such removal will not be for the good of the service, shall make any such removal or discharge null and void, and in such case the member shall forthwith be restored to active service without loss of compensation, or of civil service rights, if any." Where this section of the statute applies to any of the four retirement systems, it restricts the right of an officer or board by whom a member is employed to discharge him. Notice of a discharge and summary of the facts relating thereto must be given by the discharging board or officer to the appropriate retirement board, and a discharge is null and void if the retirement board finds that the discharge will not be for "the good of the service."

The contention of the petitioner is based on her construction of the language of Section 37C, paragraph (2). We are of the opinion that a proper construction of the language of Section 37C, paragraph (2), and of c. 32 of which that section is a part, requires the conclusion that Section 37C, paragraph (2), does not apply to the discharge by a...