Home STEPHEN W. SMOLINSKI vs. BOSTON RETIREMENT BOARD (and three companion cases [Note 1]).

346 Mass. 210

May 8, 1963 - June 4, 1963

Suffolk, Worcester. County

Present: WILKINS, C.J., WHITTEMORE, CUTTER, SPIEGEL, & REARDON, J.J.

G. L. c. 32, Section 25 (5), as appearing in St. 1956, c. 525, stating that certain provisions of the retirement laws "shall be deemed to establish and to have established membership in the retirement system as a contractual relationship under which members who are or may be retired for superannuation are entitled to contractual rights and benefits," applies only to members "retired for superannuation"; a contention that so construed the statute makes an unreasonable distinction between members retired for superannuation and members retired for other causes was without merit. [211-212]

Police officers in a city's retirement system who had been retired for disability but who might be restored to active service and thereafter retired for superannuation were not members of the system entitled to "contractual rights and benefits" under G. L. c. 32, Section 25 (5), as appearing in St. 1956, c. 525, as members who might be "retired for superannuation," and Section 91A of c. 32, inserted by St. 1958, c. 684, Section 1, altering the rights and benefits of members "retired . . . for disability," applied to such police officers. [213]

FOUR BILLS IN EQUITY, one filed in the Superior Court on June 29, 1962, one on July 3, 1962, and two on February 27, 1963.

The suits were reported by Pecce, J.

Arthur M. Gilman for the plaintiffs.

William H. Kerr for the Boston Retirement Board.

Henry P. Grady, Assistant City Solicitor, for the Worcester Retirement Board.

Herbert E. Tucker, Jr., Assistant Attorney General, for the Attorney General.

Page 211


WHITTEMORE, J. These four bills in equity seek declarations under G. L. c. 231A as to the effect of G. L. c. 32, Section 91A, inserted by St. 1958, c. 684, Section 1 (approved as an initiative law in the election of November 4, 1958), upon the rights of three police officers of the city of Boston and one police officer of the city of Worcester who had been retired for accidental disability (total and permanent incapacity). Two of the plaintiffs, former Boston police officers, were retired on July 1, 1939, and September 1, 1942, respectively, under St. 1922, c. 521, Section 13, a special statute which established the Boston retirement system. The other plaintiffs were retired under G. L. c. 32, Section 7, on, respectively, December 1, 1952, and February 1, 1956. The cases were consolidated in the Superior Court and reserved and reported without decision. The Attorney General having been notified under G. L. c. 231A, Section 8, has appeared and taken part.

Section 91A requires, in substance, that a person "pensioned or retired under any general or special law for disability, including accidental disability" refund so much of his adjusted pension or retirement allowance for any year as, when added to his earnings for that year, exceeds "the regular compensation which would have been payable to such person in such . . . year had he continued in service in the grade held by him at the time he was pensioned or retired."

The plaintiffs rely upon G. L. c. 32, Section 25 (5), as appearing in St. 1956, c. 525, which we discuss below. They concede that apart from this statute it is established that members of contributory retirement systems have no vested or contractual rights in the statutory benefits. Foley v. Springfield, 328 Mass. 59 , 61. Kinney v. Contributory Retirement Appeal Bd. 330 Mass. 302 , 304-306. Roach v. State Bd. of Retirement, 331 Mass. 41 . McCarthy v. State Bd. of Retirement, 331 Mass. 46 , 47-48.

The retroactive application of Section 91A is made express by St. 1958, c. 684, Section 2.

Section 25 (5) of c. 32 provides: "The provisions of sections one to twenty-eight, inclusive, and of corresponding

Page 212

provisions of earlier laws shall be deemed to establish and to have established membership in the retirement system as a contractual relationship under which members who are or may be retired for superannuation are entitled to contractual rights and benefits, and no amendments or alternations shall be made that will deprive any such member or any group of such members of their pension rights or benefits provided for thereunder, if such member or members have paid the stipulated contributions specified in said sections or corresponding provisions of earlier laws."

We agree with the contention of the defendants and the Attorney General that Section 25 (5) applies to members of a retirement system governed by G. L. c. 32, Sections 1-28, or corresponding provisions of earlier laws who are "retired for superannuation." This construction is required to give meaning to the quoted words. Their significance is confirmed by reference to the proposals which preceded the statute as enacted. 1955 House Doc. No. 2821, general in terms, failed of enactment (1955 Senate Journal, p. 1405). While the bill was pending, however, there had been a proposal in the Senate (ibid. 1315; Senate Doc. No. 805) to amend the bill to insert the words "retired for superannuation." In 1956 House Doc. No. 2805 was recommended by the committee (1956 House Journal, p. 883) based on House Docs. No. 332 and No. 1168; all three bills were general in terms. A Senate amendment (1956 Senate Journal, p. 1128) inserted the words "who are or may be retired for superannuation." See, for passage, 1956 Senate Journal, p. 1259; 1956 House Journal, p. 1729.

We hold that the specification "retired for superannuation" controls the generality of the prior words: "shall be deemed to establish and to have established membership in the retirement system as a contractual relationship."

We do not agree with the plaintiffs that this construction is to be rejected because it makes an unreasonable distinction between pensioners. Bases for the distinction can be found and the express language may be taken to reflect them.

Page 213

We reject also the plaintiffs' contention that since they might be recalled to active service under G. L. c. 32, Section 8 (2) (or St. 1922, c. 521, Section 19), and, if recalled, might thereafter be retired for old age, they are persons who "may be retired for superannuation." We hold that the statute in using the words "are or may be retired" intended to provide for retroactive and future application of the act in respect of persons retired for superannuation.

We do not reach the question whether Section 25 (5) has any application to persons retired under St. 1922, c. 521.

A decree is to enter in each case declaring that G. L. c. 32, Section 91A, is applicable to the plaintiff.

So ordered.


FOOTNOTES

[Note 1] The companion cases are by Mark F. Burke against the same defendant, James E. Brogan against the same defendant, and Albert P. Connole against the Worcester Retirement Board.