*1 331 Mass. 46 McCarthy v. State of Board Retirement. H. administratrix, C. vs. McCarthy,

Frances State of

Board Retirement. January 7, Suffolk. November 1953. 1954. Qua, C.J., Wilkins, Spalding, Williams, Present: Couniban, & JJ. Contract, Retirement. Pension. What constitutes. Law, Constitutional contracts, Obligation Pension, of Retirement. General and A former member of the Court member the of State em- ployees’ system, retirement who before the of enactment St. proper system, had contributions into made had ceased retired, actually receiving to hold and system years, for several had no con- allowance, to continuance of the tractual even “to so much” would result from the thereof “as of an contributions, protected his and with was not the contract clause against of the Federal Constitution abolition of the by the 1952 allowance effected statute. filed in Supreme Judicial Court for equity, Bill on county February 12, Suffolk 1953. reported The suit was reserved and by Williams, J., without decision. A. Daly, plaintiff.

John for Attorney Fred W. Assistant Fisher, General, (Hugh Attorney General, Assistant with Morton, him,) for the defendant. J. Arthur was a Youngman

Wilkins, member eighteen General Court more than years for before his retirement at of 1948. Prior to September 16, the end employees’ he was a member the State retirement and system, terminating paid before his service he had into fund all savings required contributions or per- mitted to be him. His paid by pursuant retirement was board, his defendant application to the from January, monthly he received September, with G. L. computed allowance McCarthy Board of Retirement. v. State *2 1952, 634, of St. c. passage as After the 32, c. amended. to payments to make further the defendant board refused complaint bill of filed this him. The intestate plaintiff’s to to to his continue binding for a declaration as to the constitution- receive a retirement allowance and as in arguments to the ality 1952, Subsequent of St. c. 634. has sub- died, this court he and his administratrix party plaintiff. stituted as Contributory Kinney from v. present

The case differs v. 302, and Roach Board, Retirement Appeal ante, 41, in that State Board retired, and intestate had ceased to hold allowance. actually begun to receive a accordingly, position Counsel for the in to plaintiff is, raise questions presented certain were not which however, Roach case. feel to reach different unable, We result. from what we depart We think that we should not in Kinney said that the State em- case. We reaffirm immu- ployees’ retirement no vested and system “creates legisla- rights resting upon table rather than upon contract policy beneficiary tive even after the has become entitled cannot pension payments” 306). adopt We (page suggested to rea- qualification pension subject that abolition after the sonable alteration but not to beneficiary payments. entitled to become plaintiff impairment an

The contends that there has been pen- obligation of the of a “as to so much of contract annuity in purchaseable sion as is included an fund, annuity savings defined contributions” theory (Ter. Ed.) G. L. The of this 32, 1, c. as amended. § of the argument is that deductions em- the accumulated fund transferred ployee paid annuity savings into the were in G. L. fund, reserve defined 1, c. as 32, amended, when his § requirements with the effective, became all in St. as (Ter. Ed.) 32, (2) (a), appearing G. c. § transferred c. and that the amounts thus 1;§ pension “must so as would support much of 331 Mass. 46 McCarthy v. State Board of Retirement.

result from the an with such funds. The fund, noted, it should be must be invested pre- as in G. L. (Ter. Ed.) scribed c. (2) (b), as appearing § in St. as amended by St. 1950, c. § 1. § It cannot be used to purchase annuities.

The employee acquired no interest in the annuity reserve itself, fund and it seems to that us his rights are greater no because there are two funds his contributions have been transferred from one to the other. We believe that the Commonwealth has entered into no contract of insur- ance with a legislator whose retirement is complete any *3 more than with one who not ceased to hold office.

Any question recovery as to of contributions annuity savings fund is within not the scope of these pro- ceedings.

A entered declaring decree is be that St. 1952, c. 634, constitutional as to the intestate, and that plaintiff as administratrix of his estate is not entitled to any enforce the payment sum due to the plaintiff’s intestate as an allowance from the State employees’ retire- system. ment

So ordered. J. For reasons which I have given in a Counihan, concurring opinion in Roach v. State Board ante, 41, I am constrained to concur this opinion.