Walker v. Montgomery County Council

• Decision Date: 11 October 1966
• Docket Number: No. 415,415
• Parties: J. Grahame WALKER v. MONTGOMERY COUNTY COUNCIL.
• Court: Maryland Court of Appeals

Page 98

244 Md. 98

223 A.2d 181

J. Grahame WALKER v. MONTGOMERY COUNTY COUNCIL.

No. 415.

Court of Appeals of Maryland.

Oct. 11, 1966.

J. Grahame Walker, Bethesda, for appellant.

Robert G. Tobin, Jr., County Atty., Douglas H. Moore, Jr., Deputy County Atty., and Robert H. Metz, Asst. County Atty., for Montgomery County, Rockville, for appellee.

Before HAMMOND, C. J., and HORNEY, OPPENHEIMER, BARNES and McWILLIAMS, JJ.

HORNEY, Judge.

The sole question presented by this appeal is whether a former judge of the People's Court for Montgomery County, who was appointed to fill the unexpired term of his predecessor but not reappointed at the end of such term, was entitled to the pension provided by § 108(15)(b) of Article 52 of the Code of 1957 regardless of whether or not he continued the practice of law after he reached the age of sixty-five years.

The pertinent part of § 108(15)(b) of Article 52 provides:

'Every full-time judge of the People's Court for Montgomery County shall be paid, after the termination of active service, if he is then at least sixty-five years of age, or when he becomes sixty-five years of age, a pension or salary calculated at the rate of four hundred dollars ($400.00) ¹ aunum for each year, or any part thereof, of active service, up to and including sixteen years of such active service, so that the maximum pension or salary for such service payable hereunder to any one person shall not exceed the sum of six thousand four hundred dollars ($6,400.00) per annum, provided, however, that no person serving less than twelve months as a judge under this subsection shall receive a pension or salary, unless such person involuntarily be caused to resign or to retire therefrom because of sickness or physical incapacity or disability before the termination of the prescribed minimum period of service. Provided further, however, that any such judge who has retired or who hereafter voluntarily retires from active service after reaching the age of sixty-five years and resumes the practice of law, shall not be entitled to the pension or salary provided by this subsection, or any portion thereof. In the event that a retired judge engaged in the practice of law should thereafter relinquish such practice and notify the County Council and the director of finance of Montgomery County of such (fact), then, from and after the date of such notification the judge shall be entitled to all the benefits provided by this subsection. This subsection shall apply to all judges already retired from active service except as provided herein.'

The appellant, J. Grahame Walker, was appointed, qualified and served as a full-time people's court judge for sixteen months from February 27, 1962, until June 27, 1963, at which time, his term having expired, the appellee, the County Council, appointed a successor to the appellant. At that time, not having reached the age of sixty-five, he resumed the practice of law and still is so engaged. When he bacame sixty-five on October 2, 1964, the appellant applied for but was denied a pension, and these proceedings were instituted.

It is the contention of appellant that since he did not retire voluntarily (he having been replaced by the appointment of another judge to take his place) he is entitled to a pension notwithstanding his unwillingness to discontinue the practice of law. The County Council, on the other hand, contends that the disentitlement of a retired judge to the pension, should he continue or resume practicing law, pertains to all judges regardless of whether their retirement was voluntary or involuntary. We agree. While the second provisory clause, reading 'that any such judge who has retired or who hereafter voluntarily retires from active service,' is not as clear as it would have been had the adverb 'voluntarily' been omitted therefrom, there is little doubt that the Legislature, except for the special circumstances specified in the first provisory clause, did not intend that a judge who was released from his position against his will was to have an advantage with respect to a pension that was not accorded to a judge who voluntarily retired.

The words 'retire' and 'retired,' according to Webster's Unabridged Dictionary (2nd Ed.1964), connote the withdrawal of oneself...