Williams v. Contributory Ret. Appeal Bd.

• Decision Date: 27 December 1939
• Parties: WILLIAMS v. CONTRIBUTORY RETIREMENT APPEAL BOARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

304 Mass. 601

24 N.E.2d 525

WILLIAMS

v.CONTRIBUTORY RETIREMENT APPEAL BOARD.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 27, 1939.

Exceptions from Supreme Judicial Court, Suffolk County.

Certiorari proceeding by Enos D. Williams against the Contributory Retirement Appeal Board, to review the retirement of petitioner from his position as Register of Deeds for the Northern District of Bristol County for superannuation. On exceptions to the action of a single justice in dismissing the petition.

Exceptions overruled.

R. C. Evarts, of Boston, for petitioner.

P. A. Dever, Atty. Gen., and Roger Clapp, Asst. Atty. Gen., for respondent.

DOLAN, Justice.

This is a petition for a writ of certiorari which comes before us on the exceptions of the petitioner to the action of a single justice of this court in dismissing the petition. The case came before the respondent upon the petitioner's appeal from the action of the Bristol County Retirement Board on December 21, 1938, in voting to retire the petitioner from his position as register of deeds for the Northern District of Bristol County ‘for superannuation,’ effective from the first day of January, 1939. This appeal was taken under the provisions of G.L. (Ter. Ed.) c. 32, § 37C, as added by St. 1936, c. 318, § 3, as amended by St. 1938, c. 360, § 10A.

In its findings the respondent states that ‘Substantially all the facts are agreed upon, as follows: Enos D. Williams was born on August 10, 1863. He was first elected register of deeds April 24, 1904. He was last elected in 1934 to serve for six years. The Bristol County Retirement System became operative on January 1, 1937. By a written request on March 31, 1937, Mr. Williams applied for membership in the system and asked for the two years extension allowed by the statute. On March 31, 1937, the Bristol County Retirement Board voted to admit him to membership and granted him an extension of two years from the operative date, namely, from January 1, 1937, to January 1, 1939, Mr. Williams notified the Bristol County Retirement Board under date of December 15, 1938 that he waived all retirement benefits and withdrew from the system, also that he intended to complete his term of office. The Bristol County Retirement Board voted to retire Mr. Williams for superannuation on January 1, 1939, and notified him to this effect under date of December 28, 1938.’

‘On these agreed facts the appellant contended that, since he was elected by the voters for a term of six years, his election to become a member constituted only an election to avail himself of the privilege of membership to the extent that he could retire at any time during the period after he joined, up to January 1, 1939, but that he could legally withdraw from the system (as he purported to do on December 15, 1938) at any time before said January 1, 1939. It was further contended that an elected official who was elected prior to the effective date of the contributory retirement act is in a different position from one elected thereafter, in that the voters in the first case did not know that he might have to retire (if he joined the system) before the expiration of his term, while in the latter case the election must have been in contemplation of such retirement.’

The respondent found that the petitioner joined the retirement system of Bristol County on March 31, 1937, that his letter requesting membership in the system was plain and unequivocal, that he was accepted as a member by the county retirement board which had voted to admit him to membership, and which issued to him a prior service certificate, and that the only question for determination was whether an elected official who was elected before the effective date of the ‘retirement act’ for a term of six years expiring in January, 1941, ‘could, at his option, repudiate his membership and serve out his term.’ The respondent decided that the petitioner became a member of the county retirement system, that he was legally granted an extension of term of service under the provisions of G.L. (Ter. Ed.) c. 32, as amended, which time expired on January 1, 1939, that he was retired by operation of law on that date, that he had no legal right to withdraw from the system, and that his attempt to do so was of no effect. The respondent ‘denied’ the appeal and affirmed the action of the county retirement board.

The petitioner contends before us that he ‘was never legally a member of the system’ and, in the alternative, that, even if it can be said that he became a member, he effectively withdrew from membership before the board attempted to retire him.

The retirement system went into effect in Bristol County on January 1, 1937, and was governed by G.L. (Ter. Ed.) c. 32, as amended by St. 1936, c. 400, § 1, which strikes out sections 20 to 25, inclusive, of chapter 32, and inserts new sections in place thereof. Section 21(1)(d), thus inserted, provides as follows: ‘Any person holding office by popular election in a county when the system becomes operative therein, who then has completed not less than six years of continuous service in said office, or who, after the date on which the system becomes operative therein, shall complete six years of continuous service in said office, may, at his option, to be exercised in writing not less than ninety days thereafter, become a member of the system if the duties of his office require him to devote a major portion of his time to the work of such office, and such officer shall receive credit for prior service in all elective and non-elective positions previously held by him in such county, in the same manner as other employees. Any employee of a county or hospital district who becomes a member while holding a non-elective position, and who thereafter accepts an office by popular election, shall retain his membership in the system unless within ninety days after such acceptance he files with the board on a form prescribed by the board a notice of his election not to remain a member of the system and a duly executed waiver of all present and prospective benefits which would otherwise inure to him on account of his participation therein, in which case his accumulated deductions shall be paid to him. Any person not an employee of a county who, after the date on which the system becomes operative therein, is elected by popular election to a county office in such county, and who is required to devote a major portion of his time to the duties of his office, may at his option become a member of the system as of the day six years after he takes office; provided, that such option shall be exercised in writing not later than ninety days after the expiration of said six years.'¹

The petitioner argues that, since he exercised his option in writing to become a member of the system, before the expiration...