Hinckley v. Ret. Bd. of Gloucester

• Decision Date: 16 June 1944
• Citation: 55 N.E.2d 682,316 Mass. 496
• Parties: HINCKLEY et al. v. RETIREMENT BOARD OF GLOUCESTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

316 Mass. 496

55 N.E.2d 682

HINCKLEY et al.

v.RETIREMENT BOARD OF GLOUCESTER.

Supreme Judicial Court of Massachusetts, Essex.

June 16, 1944.

Suit by Edward P. Hinckley and others against the Retirement Board of Gloucester to require defendants to remove plaintiffs' names as members of the police officers' contributory retirement system, to enjoin defendants from deducting sums from plaintiffs' salaries for purposes of such system and to recover deductions already made. From a decree ordering removal of plaintiffs' names and providing for the repayment of the deductions with interest, defendants appeal.

Affirmed.Appeal from Superior Court, Essex County; Goldberg, Judge.

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

G. L. McDonald, of Gloucester, for plaintiffs.

C. W. Wonson, of Gloucester, for defendants.

WILKINS, Justice.

The plaintiffs as to whom the bill was not dismissed (hereinafter called the plaintiffs), regular police officers of the city of Gloucester, by a bill in equity seek to require the defendants, one of whom is city auditor, one of whom is city treasurer, and all of whom are members of the local retirement board, to remove the plaintiffs' names as members of the contributory retirement system, to enjoin the defendants from deducting sums from their salaries for the purposes of such system, and to recover deductions already made. A demurrer to the bill of complaint was overruled. The case was then heard on a statement of agreed facts. The judge ruled that the plaintiffs had not become members of the contributory retirement system, ruled that there was no need for an injunction on the authority of Davis v. Retirement Board of County of Middlesex, 312 Mass. 115, 120, 43 N.E.2d 330, and entered a decree ordering the removal of the plaintiffs' names and providing for the payment of the deductions with interest. The defendants appealed.

At the outset we are confronted by a challenge to the jurisdiction of the Superior Court, a question not discussed in Davis v. Retirement Board of the County of Middlesex, 312 Mass. 115, 43 N.E.2d 330, and Ford v. Retirement Board of Lawrence, 315 Mass. 492, 53 N.E.2d 81.

The bill of complaint alleges that the plaintiffs are regular police officers of the city of Gloucester; that all of them had previously been reserve police officers, and had been appointed as such prior to June 30, 1937; that at the time of their appointment as members of the police department ‘the original statutory retirement system’ to be found in G.L.(Ter.Ed.) c. 32, §§ 56-60, inclusive, 83-85, inclusive, and 89, had been accepted by the city and was in force and applied to ‘any member of the police department,’ including the plaintiffs; that when ‘the revised retirement act,’ to be found in G.L. (Ter.Ed.) c. 32, §§ 26-31H, inclusive, as appearing in St.1936, c. 318, § 1, took effect on July 1, 1937, the plaintiffs were reserve police officers; that since July 1, 1937, the plaintiffs have been appointed permanent police officers; that at the expiration of ninety days from his permanent appointment each was advised by his superiors and by the defendants, the members of the retirement board, that he came within the provisions of the ‘revised retirement act’ and would be forced to contribute; that thereafter the plaintiffs have paid five per cent of ‘their weekly salary’ under protest, contending that they were already covered by ‘the original retirement law’ and therefore expressly were excluded from the new act; that the defendants in October 1942, gave the plaintiffs a hearing at which they were represented by counsel and, relying upon St.1938, c. 326, protested against the contributions they were forced to make; and that the defendants voted not to refund any deductions which had been made from the plaintiffs' salaries and voted to continue making deductions as before. The relief prayed for included an injunction against further deductions, the removal of the names of the plaintiffs as members of the retirement system, and the refunding of sums previously deducted with interest.

One ground of demurrer was that G.L.(Ter.Ed.) c. 32, §§ 26-31H, as appearing in St.1936, c. 318, which established contributory retirement systems for municipalities accepting the same, conferred ‘exclusive’ jurisdiction upon the local retirement board and ‘the contributory retirement appeal board.’ The defendants contend that the Legislature intended a uniform procedure requiring appeals to the appeal board within a limited time before invoking the aid of the courts by writ of certiorari or other appropriate remedy, and that the plaintiffs had no option to ignore the appeal board, to wait six months after a decision by the local retirement board, and then to institute proceedings in equity in the Superior Court.

The plaintiffs, on the one hand, rely upon section 38 of said c. 32, as amended by St.1937, c. 336, § 21, which reads, ‘The superior court shall have jurisdiction in equity, upon petition of the commissioner of insurance or any interested party, to compel the observance and to restrain the violation of any provision of sections one to thirty-one I, inclusive, and of the rules and regulations established thereunder.’ The defendants, on the other hand, rely upon G.L.(Ter.Ed.) c. 32, § 37C, paragraph 7, as appearing in St.1938, c. 439, § 2, which provides: ‘There is hereby established a board composed of the director of the division of accounts or an assistant in said division to be designated in writing from time to time by the commissioner of corporations and taxation, the commissioner of insurance or an assistant to be designated in writing from time to time by said commissioner, and an assistant attorney general to be designated from time to time by the attorney general, said board being hereinafter called the appeal board. On matters not subject to review as hereinbefore provided, any person aggrieved by any order, decision or finding of a retirement board, or by the failure of such board to act, may within ten days after such order, decision or finding, or within ten days after the expiration of one month following the date of a written request to such board for such an order, decision or finding in case no action was taken by such board thereon within one month, appeal to the appeal board by filing with the board a claim in writing. The appeal board shall, after due notice, give a hearing in not less than ten nor more than sixty days following the filing of any such claim of appeal. The appeal board shall pass upon the appeal, and its decision shall be final and binding upon the board of retirement involved and upon all other parties in interest, and shall be complied with by such board.’

The statute must be construed as a whole giving effect to all its provisions so far as possible. ‘It is a familiar canon of statutory interpretation that every word of a legislative enactment is to be given force and effect so far as reasonably practicable. No part is to be treated as immaterial or superfluous unless no other rational course is open.’ Commissioners of Public Works v. Cities Service Oil Co., 308 Mass. 349, 360, 32 N.E.2d 277, 283, and cases cited; Williams v. Contributory Retirement Appeal Board, 304 Mass. 601, 605, 24 N.E.2d 525;Mitchell v. Mitchell, 312 Mass. 154, 161, 43 N.E.2d 783. In section 37C, as appearing in section 2 of St.1938, c. 439, a legislative intent is shown to establish a comprehensive procedure applicable to all members of contributory retirement systems of the Commonwealth, of counties, and of cities and towns, including public school teachers. Except as to matters subject to review...