Fulton v. City of Boston
| Decision Date | 28 March 1929 |
| Citation | 165 N.E. 684,267 Mass. 1 |
| Parties | FULTON v. CITY OF BOSTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Superior court, Suffolk County; Louis S. Cox, Judge.
Action by Martin A. Fulton against the City of Boston. On report from the superior court. Judgment for defendant.
F. J. Linehan, Jr., and B. W. Taylor, both of Boston, for plaintiff.
J. P. Lyons, Asst. Corp. Counsel, of Boston, for defendant.
This case, an action of contract, was tried in the superior court without a jury upon an agreed statement of all material facts bearing upon the issue raised, and is reported to this court without decision, pursuant to G. L. c. 231, § 111.
The action is to recover the sum of $168.40, which was deducted in equal installments monthly from the salary of the plaintiff who was regularly employed by the city of Boston in its auditing department on May 2, 1926, and continued in said employment until November 3, 1928, the date of the writ in this action. It appears in the agreement of facts that the plaintiff served in the navy of the United States in the World War between April 6, 1917, and November 11, 1918, and was honorably discharged from the naval service on June 11, 1919. He is a resident of the city of Boston, and the provisions of G. L. c. 32, §§ 56 and 59, were accepted by the mayor of the city of Boston September 30, 1920, and the provisions of St. 1922, c. 521, were accepted by the mayor and city council of the city of Boston on August 22, 1922. The civil service commission and the authorities in charge of the employment of persons for the city of Boston were informed and knew that the plaintiff had served in the World War between April 6, 1917, and November 11, 1918, and therefore knew that the plaintiff was a veteran as that status is defined in G. L. c. 32, § 56. It is stipulated that if the plaintiff is entitled to recover, judgment shall be entered for the plaintiff in the sum of $168.40, otherwise judgment is to be entered for the defendant.
The issue raised by the agreement of facts is, Has the plaintiff, who became an employee of the city of Boston after the establishment of the Boston retirement system on February 1, 1923 (St. 1922, c. 521, § 3), by reason of the fact that when employed he was a veteran of the World War, any pension rights under the provisions of G. L. c. 32, §§ 56 to 59, inclusive? Or, is a person of his status on the facts disclosed entitled to any retirement allowance other than is provided for by St. 1922, c. 521?
It is provided by G. L. c. 32, § 56, that ‘A person who has served in the army, navy or Spanish war or Philippine insurrection between April twenty-first, eighteen hundred and ninety-eight, and July fourth, nineteen hundred and two, or in the World War between April sixth, nineteen hundred and seventeen, and November eleventh, nineteen hundred and eighteen, and has been honorably discharged from such service or released from active duty therein, in sections fifty-six to sixty, inclusive, called a veteran, who is in the service of the commonwealth, or of any county, city, town, or district thereof, shall be retired with the consent of the retiring authority, if incapacitated for active service, at one half the regular rate of compensation paid to him at the time of retirement, and payable from the same source; provided, that he has been in the said service at least ten years, has reached the age of fifty, and has a total income from all sources, exclusive of such retirement allowance, not exceeding five hundred dollars.’
St. 1922, c. 521, § 5, reads: ...
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