State v. Dowe

• Decision Date: 01 July 1942
• Citation: State v. Dowe, 28 A.2d 12, 129 Conn. 266 (Conn. 1942)
• Court: Connecticut Supreme Court
• Parties: STATE ex rel. HYDE v. DOWE, Comptroller.

28 A.2d 12

129 Conn. 266

STATE ex rel. HYDE

v. DOWE, Comptroller.

Supreme Court of Errors of Connecticut.

July 1, 1942.

Rehearing Denied Sept. 1, 1942.

Appeal from Superior Court, Hartford County; Inglis, Judge.

Action by the state on the relation of Alvan Waldo Hyde against John M. Dowe, Comptroller, claiming a writ of mandamus compelling defendant to enter upon his records the retirement of the plaintiff from the service of the state and to pay him a retirement salary, brought to the Superior Court in Hartford County, where a motion to quash the alternative writ was denied, and the issues were tried to the court. Judgment for plaintiff and appeal by defendant.

Error and case remanded with direction. Before MALTBIE, C. J., and AVERY, JENNINGS, ELLS, and DICKENSON, JJ.

Thomas J. Conroy, Asst. Atty. Gen., and Nicholas F. Rago, Deputy Atty. Gen. (Francis A. Pallotti, Atty. Gen., on the brief), for appellant.

Barclay Robinson, of Hartford, for appellee.

MALTBIE, Chief Justice.

In this action a mandamus was sought directing the comptroller of the state to place the plaintiff upon the retirement list of state employees and thereafter to draw orders for the payment to him of a retirement salary. On April 5, 1909, the plaintiff enlisted in the Governor's Foot Guard and thereafter he continued a member and officer of that organization until, on June 8, 1934, he retired at his own request. During this period he received compensation from the state on a per diem basis when he was in field training or on parade, for two or three days in each year, and for seven years, when he was major and commandant, an additional sum of $50 a year for his responsibility for the equipment of the company. On February 25, 1915, the plaintiff was appointed a voting machine commissioner for the state, and held that office until June 30, 1933. During this period he received, as full compensation for the performance of his duties, the sum of $100 for examining and reporting on each machine, this sum being paid, not by the state, but by the corporation applying for the examination. How many machines he so examined is not found. Since 1916 the plaintiff has been trustee of the Connecticut State Hospital, serving without compensation. He attended meetings of the trustees on the average of about three times a year, also various meetings of its executive committee, and he was frequently called upon for advice by the superintendent of the institution. He was appointed public utilities commissioner of the state on November 28, 1934, and continued as such until June 30, 1941, at a salary of $9,000 a year. When the Retirement Act was passed in 1939, Gen.St.Supp.1939, § 67e, there was in existence a classification of positions and schedules of compensation of those in the employment of the state, but the membership in the Foot Guard and the positions of voting machine commissioners or trustees of the State Hospital were not included in it; nor was membership in the Foot Guard or the positions referred to listed on the employment record cards in the office of the state auditors. The compensation of members of the Foot Guard is paid "by the comptroller, on the approval of the governor, in accordance with pay rolls, properly receipted, and attested and sworn to by the commanding officer." General Statutes, § 821.

On June 11, 1941, the plaintiff was over sixty years of age. He applied for retirement as of June 30, 1941. The retirement commission ruled that only his service as public utilities commissioner could be counted as determining the years of service upon which a retirement salary could be based, and that as that was less than the minimum number of years of service required for retirement at the age of sixty, in the absence of disability, he was not entitled to a retirement salary. The trial court concluded that the word "service" in the act is used in its ordinary sense, not with the meaning of employment connoting compensation; that the plaintiff had been in the service of the state since his enlistment in the Foot Guard, a period of more than thirty years; and that, therefore, he was entitled to be retired, at a salary amounting to 60 per cent of that he had received during the last five years of his holding office as public utilities commissioner.

The plaintiff relies upon the following provision in the Retirement Act: "Any person in the service of the state shall, upon application by himself or the executive head of the department, commission or institution for which he is serving, be retired, subject to the following conditions as to term of service and age, and shall receive a salary as hereinafter provided: After twenty years of service, in the aggregate, and reaching the age of seventy years * * * or being a male person, having reached the age of fifty-five, after twenty-five years of service, at a salary equal to fifty per cent of his average salary for...