Olivier v. City of Fall River

• Decision Date: 27 June 1940
• Citation: 28 N.E.2d 228,306 Mass. 376
• Parties: OLIVIER et al. v. CITY OF FALL RIVER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

306 Mass. 376

28 N.E.2d 228

OLIVIER et al.

v.CITY OF FALL RIVER et al.

Supreme Judicial Court of Massachusetts, Bristol.

June 27, 1940.

Proceeding by Remi Olivier and others against the City of Fall River and others to prevent the payment to one Mooney of a pension after his retirement from service of the city. From a decree dismissing the petition, plaintiffs appeal.

Affirmed.Appeal from Superior Court, Bristol County; Hurley, Judge.

A. E. Seagrave and A. E. Beaulieu, both of Fall River, for petitioners.

J. T. Farrell, of Fall River, for respondent Mooney.

G. L. Sisson, of Fall River, for City of Fall River.

LUMMUS, Justice.

This is a petition by ten taxable inhabitans of the respondent city under G.L. (Ter.Ed.) c. 40, § 53, to prevent the payment to one Mooney of a pension after his retirement from the service of the city. Mooney had been employed as a laborer for thirty-six years when in June, 1932, at the age of sixty-four, he suffered injuries arising out of and in the course of his employment. Under the Workmen's Compensation Act, G.L. (Ter.Ed.) c. 152, he was awarded compensation for two hundred and sixty-eight weeks at the rate of $16.80 a week, which he has received. At the time of his injury he was entitled, under St.1924, c. 278, as amended by St.1930, c. 71, because of his age, length of service, and incapacity, to apply for retirement upon an annual pension amounting to half pay with a maximum of $500. He elected not to apply for retirement, and became separated from the service of the city because of his incapacity. Fernandez v. Mayor of New Bedford, 269 Mass. 445, 169 N.E. 438;Horrigan v. Mayor of Pittsfield, 298 Mass., 492, 11 N.E.2d 585. By St.1939, c. 95, the Legislature ordered his reinstatement for the sole purpose of being retired on half pay. He was so reinstated and retired on January 4, 1940.

The principle upon which pensions to civil officers and employees are sustained against attack on constitutional grounds, that they tend to make the public service attractive, efficient and honorable, applies as well to pensions presently granted to selected and named individuals for past services, at to pensions granted to a present or future class by general legislation. In re Opinion of the Justices, 175 Mass. 599, 57 N.E. 675,49 L.R.A. 564;In re Opinion of the Justices, 211 Mass. 608, 98 N.E. 338;In re Opinion of the Justices, 240 Mass. 616, 136 N.E. 157, 23 A.L.R. 610;Gray v. City of Salem, 271 Mass. 495, 498, 171...