294 Mass. 577 | Mass. | 1936
These two cases are brought by the same plaintiff to recover accumulated deductions from his salary, made by the Cambridge Retirement System.
The first is an action of contract brought in the Third District Court of Eastern Middlesex. It was agreed by the parties that the judge might find the following facts: “1. That William J. Cogan is an employee of the school department of the city of Cambridge, holding the office of attendance officer. 2. That the Cambridge Retirement System,
That prior to the bringing of this writ the plaintiff sent to the Cambridge Retirement Board a letter, a copy of which is hereto annexed and marked ‘A, ’ informing them of his desire to withdraw from the Cambridge Retirement System and requesting the return of all deductions made from his salary together with interest. 7. That the Cambridge Retirement Board did send to the plaintiff two letters, copies of which are hereto annexed and marked ‘B ’ and ‘C.’ ” The trial judge found the facts as above stated, and ruled that the defendant had no right to allow the plaintiff to withdraw from the Cambridge Retirement System in the circumstances disclosed, and had no right to return to him the accumulated deductions requested by him. He found for the defendant, and stated "If it shall appear that . . . the plaintiff is entitled to retire from the Cambridge Retirement System and withdraw the accumulated deductions above referred to, judgment is to be entered for the plaintiff for the sum of $359.69 with interest from the date of the writ, otherwise judgment is to be entered for the defendant.” At the request of the parties the judge reported the case to the Appellate Division under G. L. (Ter. Ed.) c. 231, § 108, which dismissed the report, and the plaintiff appealed.
Thereafter, on March 26, 1936, the plaintiff filed a bill in equity in the Supreme Judicial Court, wherein it is alleged that the proceedings are brought under the provisions of § 19 of St. 1931, c. 453, which is entitled "An Act providing retirement allowances based on annuity and pension contributions for employees of the city of Cambridge.” The prayers of the bill in substance are that the members of the
Section 4 of the act relates to membership. It provides, § 4 (1), that membership is compulsory (a) for all employees who become such after the passage of the act and after one year’s service; and (b) for any employee who was in service before the passage of the act unless such employee files a written notice electing not to become a member. Section 4 (5) provides: “Should any member in any period of six consecutive years after last becoming a member be absent from service more than five years, or should any member withdraw his accumulated deductions or become a beneficiary hereunder or die, he shall thereupon cease to be a member.” It is under provision (5) that the plaintiff claims the right to withdraw the deductions while he is still an employee of the city. It is specifically provided in § 10 (1) that'' within
There is no dispute about the facts in either case. The issue presented is whether a member of the Cambridge Retirement System may at any time, and while still in the employ of the city, withdraw .from the fund accumulated deductions from his salary. The act was accepted by the city and went into effect as of January 1, 1932. Its purpose, as stated in § 1, "is to improve the efficiency of the public service of the city of Cambridge ... by the retirement of disabled or superannuated employees.” By § 3 a "retirement system” is established, membership in which is regulated by the provisions of § 4. A system is established whereby a member on retiring under § 6 receives a retirement allowance derived in part from deductions from his salary, and in part from contributions made by the city. There is also provision for allowances to those members who retire under § 7 or § 8 because of disability. By § 6, a member who has become sixty years .old shall be' retired on his own application, or on the application of the head of his department, unless in the latter case the retirement board finds, after hearing, that the member is able to perform properly his duties. This section further provides that any member who has reached the age of seventy shall be retired for superannuation not less than thirty nor more than ninety days after attaining that age "or after this system becomes operative, if such age was attained prior thereto.” It is plain that these provisions apply only to members. It seems clear from § 4 (1) (a) and (b), even without considering the declared purpose of the act, that as to new employees, membership, with its privileges and
As it is plain that the plaintiff is not entitled to maintain either the action at law or the suit in equity, the order of the Appellate Division dismissing the report must be affirmed, and the bill in equity pending in this court must be dismissed.
So ordered.