Horrigan v. Mayor of Pittsfield

• Decision Date: 30 November 1937
• Citation: 298 Mass. 492,11 N.E.2d 585
• Parties: MICHAEL J. HORRIGAN v. MAYOR OF PITTSFIELD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

298 Mass. 492

11 N.E.2d 585

MICHAEL J. HORRIGAN v. MAYOR OF PITTSFIELD.

Supreme Judicial Court of Massachusetts, Berkshire.

November 30, 1937

September 21, 1937.

Present: FIELD DONAHUE, LUMMUS, & QUA, JJ.

Civil Service Reinstatement after invalid retirement. Constitutional Law Police power, Use of public funds for benefit of individual Legislative control of municipalities. Words, "Reinstated."

G.L. (Ter. Ed.) c. 31, Section 13, and Civil Service Rule 9 do not apply to an application for reinstatement under St. 1936, c. 287.

St. 1936, c.

287, providing for reinstatement without loss of compensation of employees of a municipality who had become separated from the classified civil service by retirement and whose retirement allowances had been discontinued because of invalidity in the retirement proceedings, was not a violation of the Constitution of this Commonwealth nor of the Fourteenth Amendment to the Federal Constitution even when applied to a police officer who, more than two years before the passage of the statute, was retired for inability to perform his duties fully and whose "pension" later was discontinued because the retirement was invalid.

A police officer of a city, after reinstatement by the commissioner of civil service pursuant to St. 1936, c. 287, was granted a writ of mandamus to compel the mayor of the city to recognize his restored status.

PETITION, filed in the Supreme Judicial Court for the county of Berkshire on January 8, 1937, for a writ of mandamus.

There was a hearing by Qua, J., who reserved and reported the case for determination by the full court.

W. A. Heaphy, for the petitioner. C. R. Alberti, City Solicitor, for the respondent.

QUA, J. The object of this petition is to secure to the petitioner full reinstatement for active duty in the police department of the city of Pittsfield. No question of pleading has been raised by either party, and we therefore consider the case broadly in order to ascertain to what, if any, relief the petitioner is entitled upon the facts admitted by the pleadings and established by the findings of the single justice of this court before whom the case was tried. Blanchard v Cooke, 147 Mass. 215 , 222.

The decisive facts are these: On December 13, 1933, the petitioner held the position of patrolman within the classified civil service. On that day he was informed that the city had retired him and had granted him a pension. He thereupon ceased to perform his duties and became "separated from the classified civil service by reason of his retirement," as those words are used in St. 1936, c. 287, to which reference is hereinafter made. At that time the petitioner was in poor health, and he has since remained in poor health, so that he has not been able to perform fully and properly the duties of a patrolman, but he has been able to perform those duties to a substantial degree. He had asked to be retired because of incapacity, and his "pension" was granted on that ground. Thereafter the city paid the petitioner certain sums for the month of December, 1933, and for the month of January, 1934, which sums were "paid and received as pension money supposed to be due." On or about February 1, 1934, the respondent, as mayor, ordered the petitioner's name to be struck from the pension list, since which time the petitioner has received no pension and has not been restored to duty as a patrolman. The petitioner brought an action against the city to recover instalments of his "pension," but this court held that he could not recover because the city of Pittsfield had never validly accepted the provisions of G.L. (Ter. Ed.) c. 32, Sections 56-59, upon which the supposed pension rested. Horrigan v. Pittsfield, 293 Mass. 17. The petitioner had thus not only lost his supposed pension, but in the expectation of receiving the pension he had lost his rights to a hearing and to judicial review of the matter of his removal from the classified service in accordance with G.L. (Ter. Ed.) c. 31, Sections 42A, 42B. After the decision in Horrigan v. Pittsfield the Legislature passed St. 1936, c. 287, which reads as follows:

"Section 1. Chapter thirty-one of the General Laws is hereby amended by inserting after section forty-six G, inserted by chapter four hundred and eight of the acts of nineteen hundred and thirty-five, the following new section: - Section 46H. Any officer or employee of a city or town who has become separated from the classified civil service by reason of his retirement under the provisions of any general or special law, if his retirement is subsequently invalidated and his retirement allowance discontinued by reason of the illegality of, or a defect in, the proceedings relative to such retirement, shall, upon application to the commissioner within one year from the last payment of said retirement allowance be reinstated by the commissioner in the same position, or in a position in the same class and grade as that formerly held by him, without loss of compensation.

"Section 2. Any officer or employee of a city or town whose retirement was invalidated, and whose retirement allowance was discontinued, for the reasons set forth in section one, prior to the effective date of this act, may apply for reinstatement under said section one within one year after said effective date and in such case the provisions of said section shall apply." This act was approved May 22, 1936. Thereafter the petitioner applied to the commissioner of civil service under the act for reinstatement to his position as a patrolman, and on August 26, 1936, the commissioner duly approved the application and on August 28 notified the respondent in writing that the petitioner's reinstatement had been approved and requested that the commissioner be informed of the date when the petitioner should return to work. On August 31, the petitioner reported in person to the respondent "for reinstatement" and the respondent denied that the petitioner had been properly reinstated. Under the charter of Pittsfield the respondent is "the chief executive officer of the city," charged with the duty "to keep a general supervision over the conduct of all subordinate officers." He may suspend any officer and may suspend any work or payment for a period not exceeding seven days. St. 1932, c. 280, Section 17. See also Section 2. In his answer the respondent admits that he and the chief of the police department wrote a letter to the petitioner denying that the petitioner had been reinstated and requesting the petitioner to undergo a physical examination by the city physicians to determine whether the petitioner was incapacitated.

It is not difficult to understand the meaning of the act of 1936 hereinbefore quoted and the purpose which it was intended to serve. An officer or employee who is in the classified service has the right to hold his office or employment without removal, suspension or lowering in rank or compensation, except in the manner specifically set forth in statutes which assure to him the advantages of notice and a hearing, and the privilege of judicial review. G.L. (Ter. Ed.) c. 31, Sections 42A, 42B, 43, 45, 46. But an officer or employee who retires or is retired by the board of retirement or by the retiring authority under G.L. (Ter. Ed.) c. 32, or under any special law, is separated from the service by an entirely different method under which he receives compensation in the shape of a pension. When, however, there has been a form of retirement which is "subsequently invalidated," and when the retirement allowance has been "discontinued by reason of the illegality of, or a defect in, the proceedings relative to such retirement," it may well occur that the person affected has in fact ceased to work and has broken off all connection with his office or employment and hence has "become separated from the classified civil service," and has therefore lost his right to a hearing and judicial review under the civil service laws without at the same time acquiring a legal pension. As to what may constitute separation from the service see Dunn v. Commissioner of Civil Service, 279 Mass. 504; Feehan v. Chief Engineer of Fire Department of Taunton, 264 Mass. 178; Skold v. Chief of Fire Department of Cambridge, 266 Mass. 513; Fernandez v. Mayor of New Bedford, 269 Mass. 445; Goldberg v. Commissioner of Civil Service, 274 Mass. 300; Smith v. Director of Department of Public Safety of Lawrence, 290 Mass. 307; Ferrante v. Higgiston, 296 Mass. 208; G.L. (Ter. Ed.) c. 31, Sections 46B-46G.

Thus the purpose of the statute seems to be to protect a classified officer or employee whose retirement may prove invalid against the possibility of losing, in addition to his pension, rights under the civil service laws which may still be valuable. This purpose is accomplished by reinstating him to the classified position which he formerly held or to a position in the same class or grade. This does not mean that he acquires any permanent right to hold his office or employment irrespective of his ability to perform the work or of other causes which might justify his suspension or removal. The use in the statute of the word "reinstated" indicates that what is meant is reestablishment in the former status with all the ordinary incidents of that status. Thus the employee, at once upon reinstatement, or at any time thereafter, can be suspended or removed by the officer or board having the power of suspension or removal over the classified position to which the employee has been reinstated, in the manner and for the causes prescribed and permitted by the civil service laws. Such reinstatement is more than an empty form, because it restores to the officer or employee his rights to notice, hearing, and review which he lost when he became...