Horrigan v. City of Pittsfield
| Decision Date | 31 December 1935 |
| Citation | 293 Mass. 17,199 N.E. 382 |
| Parties | HORRIGAN v. CITY OF PITTSFIELD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Exceptions from Superior Court, Berkshire County; F. T Hammond, Judge.
Action of contract by Michael J. Horrigan against the City of Pittsfield. The superior court, on trial without a jury found for the defendant, and plaintiff brings exceptions.
Exceptions overruled.
W. A. Heaphy, of Pittsfield, for plaintiff.
C. R. Alberti, City Sol., of Pittsfield, for defendant.
G.L. (Ter.Ed.) c. 32, § 83, which in an earlier form was accepted by vote of the city council of Pittsfield, provides for the retirement on pension by the mayor and aldermen of a disabled police officer who has performed faithful service for twenty years continuously or whose disability has resulted from injuries sustained in the performance of duty. G.L.(Ter.Ed.) c. 32, §§ 56-60, provide for the retirement on pension of war veterans for various causes, but do not take effect in any city until accepted by the mayor, who is the ‘ retiring authority.’
The plaintiff is a war veteran who has served as a police officer less than twenty years. He is disabled, but from injuries received in military service rather than police duty. He was therefore ineligible for retirement under § 83. But on December 11, 1933, the board of aldermen purported to retire him on pension ‘ as provided by chapter 32 of the General Laws, as amended,’ and on December 13, 1933, the mayor ‘ approved’ that action. For a time the pension was paid, but on February 1, 1934, payments ceased for the reason that the city solicitor advised that the retirement on pension was not lawfully accomplished. The plaintiff performed no further service, and was not capable of further service. On July 5, 1934, the plaintiff brought this action to recover unpaid instalments of pension. Bushell v. Mayor of Malden, 260 Mass. 476, 481, 157 N.E. 529. In the Superior Court, the judge found for the defendant. The plaintiff alleged exceptions.
We assume in favor of the plaintiff, who had served more than ten years, that he might have been retired on pension as a war veteran under § 57, if §§ 56-60 had been made applicable to the city of Pittsfield. The mayor, as the ‘ retiring authority’ (§ 59), had never formally accepted those sections, under § 60. In Rich v. Mayor of Malden, 252 Mass. 213, 216, 147 N.E. 586, it was held that the act of a...
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