352 Mass. 481 | Mass. | 1967
This is a bill to enjoin the defendant from terminating the plaintiff’s employment. The case was heard on a statement of agreed facts. A final decree was entered dismissing the bill from which the plaintiff appealed.
The plaintiff was born on June 25, 1894, and was appointed a deputy sheriff on January 4,1939, for a period of six years. He was reappointed to that position every six years until May 4, 1961, at which time he was appointed a
The plaintiff was denied membership in the Bristol County retirement system. Andrade v. Contributory Retirement Appeal Bd. 350 Mass. 447. Acting pursuant to G. L. c. 32, § 20 (5) (e), the Bristol County Board of Retirement (board) notified the plaintiff “that his services as a court officer would terminate as of June 30,1964. The sole reason for this action was that the . . . [plaintiff] would be seventy years old as of June 25, 1964.”
1. The plaintiff argues first that his removal from office is a judicial act which cannot be exercised by the Executive without violating art. 30 of the Declaration of Rights. In support of his argument he cites G. L. c. 37, § 16, which requires sheriffs to attend all sessions of the Superior Court in their respective counties “by themselves or by their deputies” and G. L. c. 221, § 70, which authorizes certain sheriffs to delegate their duty to salaried court officers.
As the plaintiff concedes in his brief, there is a distinction between “judicial officers whose sole function it is to determine rights and duties . . . [and] another class of officers to carry into effect the decisions and decrees made by the courts.” This latter class of officer is certainly not a “judicial officer” within the meaning of Part 2, c. 2, § 1, art. 9, or Part 2, c. 3, art. 1 of the Massachusetts Constitution whose retirement could not be compelled by statute. See Opinion of the Justices, 271 Mass. 575, 578-582.
It is established-that the courts may properly inquire into the fitness of certain officers (see Attorney Gen. v. Tufts, 239 Mass. 458, 480; Attorney Gen. v. Pelletier, 240 Mass. 264, 296; Massachusetts Bar Assn. v. Cronin, 351 Mass. 321), and that “ [t]his power of removal is judicial in the
2. The plaintiff argues that he “does not fall within the purview of the language of G. L. c. 32.” Section 20 (5) of that statute provides in part, “The board of each such system shall keep a record of the date of birth of each member of the system, and also shall keep . . . [such record for] each other employee who entered or re-entered the service of the governmental unit to which such system pertains after attaining age sixty and after the date when the system became operative therein. . . . [The board shall] notify each such . . . employee ... of the date when such . . . employee will attain the maximum age for his group, and such . . . employee shall not be employed in any governmental unit after such date . . ..”
The plaintiff contends that he did not “enter or re-enter” the service of Bristol County after attaining the age of sixty because he has “been employed in the same capacity by Bristol County since 1939.” He urges that “ [t]he essential characteristic of employment is the duties of the employee. Whether an employee is salaried or paid on a per-diem basis is an accidental matter and has little effect on the legal status of employment.”
But the “legal status of employment” in this case is governed by statute. General Laws c. 32, § 1, defines “employee” as “any person who is regularly employed in the service of any . . . political subdivision.” We had occa-
It follows that since the plaintiff was not an “employee” of Bristol County within the definition of G. L. c. 32, § 1, at the time of his appointment as a court officer in May, 1961, he “entered or re-entered” the service of Bristol County as of that date.
The plaintiff cannot rely on Essex County Retirement Bd. v. North Andover, 349 Mass. 233, 236, because the reason for his ineligibility for membership in the retirement system is his entry into employment after the age of sixty. Only if the position currently held by the plaintiff disqualified him for membership in the system would the Essex case protect him from mandatory retirement.
3. The plaintiff also argues that G. L. c. 221, § 72,
Decree affirmed.
We are puzzled by the plaintiff’s assertion in his brief that the Andrade case holds that the plaintiff “was an employee of Bristol County prior to his sixtieth birthday.” Perhaps the confusion is due to the use of the word “employee” in G. L. c. 32, § 3 (2) (d), to describe even part time workers whom the board must pass upon to determine their eligibility for the retirement system. But- the controlling section is § 1 where employee is defined for the purposes of the statute.
The section provides in material part, “ [C]curt officers . . . shall hold office during good behavior and until they are removed by the sheriff . . . for cause approved by the justices of the court for attendance upon which they were appointed.”