277 Mass. 144 | Mass. | 1931
A demurrer was filed to this petition for writ of mandamus and the case was reserved upon the petition as amended and demurrer thereto for the determination of the full court, all parties having waived any right to file further pleadings.
The petitioner alleges that he was duly elected county commissioner for the county of Worcester by successive elections, the first occurring on the seventh day of November, 1905, and the last on the sixth day of November, 1928; that he and the respondents are the county commissioners of Worcester County; that the respondents have refused to recognize him as a county commissioner, to admit him to their meetings as such commissioner or to permit him to do any act or take any part with them as a county commissioner. He asks that a writ issue commanding the respondents to recognize him as a county commissioner and to permit him to enjoy all the rights and privileges belonging to the office.
It appears from the allegations in the petition that a retirement system for employees was duly organized in Worcester County under the provisions of St. 1911, c. 634, now G. L. c. 32, §§ 20-25, and a board of retirement duly chosen in which the management of the retirement system was vested; that on July 8, 1919, by virtue of the rights conferred on elected officers of Worcester County by St. 1919, c. 158, the petitioner applied for and was admitted to membership therein; that he has paid in full the required
The original act, St. 1911, c. 634, excluded from membership in the system officers elected by popular vote. St. 1919, c. 158, making officers of the county of Worcester elected by popular vote eligible to membership in the retirement association, notwithstanding the provisions of St. 1911, c. 634, § 3, expressly stated that all provisions of that chapter shall “except as is otherwise provided herein, apply to the said officers.” In the reenactment in G. L. c. 32, § 22 (3), of the provision relating to elected officers of Worcester County, the statement that all the provisions of the retirement act “shall . . . apply to the said officers” was omitted. St. 1919, c. 158, was expressly repealed by G. L. c. 282. G. L. c. 32, § 22 (4), permits retirement by the board upon certain conditions of members of the retirement system and then provides “any member who reaches the age of seventy shall so retire.”
The petitioner contends that St. 1919, c. 158, admitting elected public officers in Worcester County to membership in the retirement system; G. L. c. 32, § 22 (3), excepting elective officers of that county from those ineligible to membership in the county retirement system; and St. 1926, c. 378, in permitting public officers elected by the people in Worcester County only, to be classed as employees, are inconsistent with art. 14 of the Amendments to the Constitution: of the United States, as a denial to the elective officers of other counties in the Commonwealth of the equal protection of the law. He also contends that the act, conferring upon elective officers of Worcester County only, the right to membership in a system which grants to its members upon retirement pensions gained in part from a public
In this proceeding, as the question of the petitioner’s title to an elective office with duties to be performed if he is still a county commissioner is in issue, as well as the question whether he is being wrongfully deprived of the emoluments thereof, he may, though a beneficiary under the act assailed, raise the question of its constitutionality. Bogni v. Perotti, 224 Mass. 152, 158.
In Vigeant v. Postal Telegraph Cable Co. 260 Mass. 335, 339, the court, in considering the Fourteenth Amendment, quoting from Barbier v. Connolly, 113 U. S. 27, 32, said: “'Class legislation, discriminating against some and favoring others, is prohibited, but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment’”; and in quoting from Hayes v. Missouri, 120 U. S. 68, said “the Fourteenth Amendment 'does not prohibit legislation which is limited either in the objects to which it is directed, or by the territory within which it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.’ ”
In Mayor of Lynn v. Commissioner of Civil Service, 269 Mass. 410, 415, the court in referring to G. L. c. 31, § 23, as amended by St. 1922, c. 463, a statute giving preference to veterans passing a civil service examination, said: “Although the pleadings raise the constitutionality of said § 23 with reference, to the Fourteenth Amendment to the Federal Constitution, we do not understand that any argument has been addressed to us on this point. In any event,
County commissioners are county officers (see Opinion of the Justices, 167 Mass. 599, 600) and the fund from which retirement payments are made in each county is derived from contributions of members of the system in that county and from county funds.
In Boston v. Chelsea, 212 Mass. 127, 129, the court said: “Counties in Massachusetts are territorial subdivisions of the State bounded and organized by the Legislature for political purposes and the administration of government. They may be changed at the will of the Legislature, and the character and extent of the sovereign powers to be exercised through them are subject to modification in like manner, according to legislative judgment of the requirement of the interests of the public. Opinion of the Justices, 6 Cush. 578. Manifestly the determination of the functions of counties and the distribution of governmental authority among them is purely legislative in its nature.” See Hill v. Boston, 122 Mass. 344, 355.
In Weymouth & Braintree Fire District v. County Commissioners, 108 Mass. 142, the court said at page 144: “There can be no doubt that the power to create, change and destroy municipal corporations is in the legislature. This power has been so long and so frequently exercised upon counties, towns and school districts, in dividing them, altering their boundary lines, increasing and diminishing
"The counties, towns and cities, into which the Commonwealth is divided, are strictly public corporations, established for the convenient administration of government; their municipal powers and duties are not created and regulated by contract, express or implied, but by acts passed by the Legislature from time to time, according to its judgment of what the interests of the public require; and they have not the same rights to judicial trial and determination, in regard to the obligations imposed upon them, as other corporations and individuals have.” Agawam v. Hampden, 130 Mass. 528, 530.
It is well settled that cities established under art. 2 of the Amendments to the Constitution may have different kinds of government, different officers and different modes of electing them. Graham v. Roberts, 200 Mass. 152. See G. L. c. 43. In Opinion of the Justices, 138 Mass. 601, 603, this language was used: "The power of the Legislature to make or to authorize local laws for the administration of local affairs is beyond question. It has the right to make local laws to meet the peculiar exigencies of any part of the community.” This right of the Legislature to provide different forms of government for different counties is also recognized in the special provisions relating to Suffolk and Nantucket counties. G. L. cc. 34, 35. See Hibbard v. County of Suffolk, 163 Mass. 34, 37; Opinion of the Justices, 167 Mass. 599, 600.
Apart from constitutional restriction the Legislature has the power to fix and change the salaries of county officers, to regulate, limit or enlarge their duties, to shorten their
The retirement acts are intimately related to services rendered to the public. When the pension is paid the services have ended, but when the employee joins the system and becomes subject to its obligations he knows that the services which he is to render the public and the contributions which he is to make are conditions precedent to his receiving the benefits of the system upon retirement. See Brown v. Russell, 166 Mass. 14, 23. The right to an exclusive privilege if based upon “consideration of services rendered to the public” is recognized in the sixth article of the Declaration of Rights.
We are of opinion that the question, whether the public welfare would be promoted by extending the retirement system to elective officers in Worcester County alone, was for the Legislature to decide; that elected officials of other counties have not been deprived of the equal protection of the law under the Fourteenth Amendment to the Constitution of the United States by the provisions of the retirement act relating to elected officers of Worcester County; and that these provisions ¡do not give the elected officers of that county exclusive privileges within the meaning of those words in the sixth article of the Declaration of Rights. See Hewitt v. Charier, 16 Pick. 353, 355, 356; Opinion of the Justices, 175 Mass. 599, 602; Attorney General v. Pelletier, 240 Mass. 264, 298, 299.
The petitioner’s further contention is that the act permitting elective officers to become members of the retirement system, if constitutional, should be so interpreted that the requirement for retirement at seventy years of age would not apply to them if the term of office otherwise fixed by statute would extend beyond that time. As applied to the petitioner who reached the age-of seventy before the
Upon the facts stated in the petition the petitioner ceased to be a county commissioner on September 7, 1931.
The entry must be
Demurrer sustained.
Petition dismissed.