Allen v. City of Cambridge

• Decision Date: 02 June 1944
• Citation: 55 N.E.2d 925,316 Mass. 351
• Parties: ALLEN v. CITY OF CAMBRIDGE. ALDEMAN et al. v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

316 Mass. 351

55 N.E.2d 925

ALLEN

v.CITY OF CAMBRIDGE.

ALDEMAN et al.

v.SAME.

Supreme Judicial Court of Massachusetts, Middlesex.

June 2, 1944.

Actions of contract by Walter L. Allen and Robert F. Aldeman and others against the City of Cambridge to recover difference between salaries paid them as members of the police or fire departments of defendant city, and amounts to which they allegedly were entitled under ordinances approving increase in salaries. With each action were consolidated and heard several actions brought by a fireman or police officer in similar circumstances. The District Court found for defendant and reported the cases to the Appellate Division which dismissed the report, and the plaintiffs appeal.

Order dismissing report affirmed.Appeal from Third District Court of Eastern Middlesex; Frost, Judge.

Before FIELD, C. J., and LUMMUS, DOLAN, and RONAN, JJ.

G. A. McLaughlin and W. H. McLaughlin, both of Boston, for appellants.

J. A. Daly, City Sol., of Boston, for appellee.

LUMMUS, Justice.

These cases bring here questions of law arising in a large number of actions of contract brought by numbers of the police and fire departments of Cambridge, who, having been paid for the first three months of 1942 at the salary rate in force in 1941, claim for that period the increase in their salaries voted by ordinances that the city council purported to enact in December, 1941, and February, 1942. The increasee amounts to $200 a year for each man. The defendant city contends that the purported increase was invalid. A judge of a District Court found for the defendant, and reported the cases to the Appellate Division, which dismissed the report. The plaintiffs appealed. The facts appear in the report.

During 1941, and for many years before, the city of Cambridge was governed under a Plan B charter,¹ the provisions of which are found in G.L. (Ter.Ed.) c. 43, §§ 56-63, as amended. Mayor or Cambridge v. Cambridge, 228 Mass. 249, 117 N.E. 312;Duggan v. Third District Court of Eastern Middlesex, 298 Mass. 274, 279, 10 N.E.2d 61;Moore v. Election Commissioners of Cambridge, 309 Mass. 303, 304, 306, 35 N.E.2d 222;Bell v. Treasurer of Cambridge, 310 Mass. 484, 486, 38 N.E.2d 660; Under a Plan B charter, the mayor holds office ‘for the term of two years from the first Monday in January following his election and until his successor is qualified.’ G.L.(Ter.Ed.) c. 43, § 58. Legislative powers are vested in a city council of fifteen members, of whom one is chosen president annually. Council members serve for ‘two years, from the first Monday in January following their election and until their successors are qualified.’ Section 59. The term of office of the mayor and members of the city council holding office in 1941 normally would end upon the qualification of their successors at 10 o'clock in the forenoon on the first Monday of January, 1942, which was January 5, 1942. G.L.(Ter.Ed.) c. 43, § 17, as amended by St. 1938, c. 378, § 6.

Under a Plan B charter, the mayor has a veto power over ‘every order, ordinance, resolution and vote relative to the affairs of the city, adopted or passed by the city council.’ But ‘every such order, ordinance, resolution and vote shall be in force if not returned by the mayor within ten days after it has been presented to him.’ G.L.(Ter.Ed.) c. 43, §§ 55, 63. By St. 1935, c. 214, § 1. ‘Salaries of the members of the police and fire departments of the city of Cambridge shall be fixed by ordinance of said city, the provisions of any special or general law to the contrary notwithstanding.’

By St. 1938, c. 378, and St. 1941, c. 722, §§ 5-7, provision was made for the adoption by a city of a new and radically different form of charter called a Plan E charter. Under that plan the city government was to consist of (a) a city council of seven or nine members, one of whom was to be chosen mayor, and (b) ‘chief administrative officer’, called the ‘city manager.’ These provisions are now found in §§ 93-116, added to G.L.(Ter.Ed.) c. 43 by § 15 of St. 1938, c. 378, as amended. Under this plan, the mayor has no veto power. The city manager is chosen by the city council to be the ‘chief administrative officer of the city.’ Section 103, inserted by St. 1938, c. 378, § 15. He has the statutory powers formerly possessed by the mayor with respect to budgets. Section 104, inserted by St. 1938, c. 378, § 15. Upon the adoption of Plan E, the new officers were to qualify at the same time as under Plan B, namely, at 10 o'clock in the forenoon on the first Monday of January. G.L.(Ter.Ed.) c. 43, § 17, as amended by St. 1938, c. 378, § 6; section 97, inserted by St.1938, c. 378, § 15. Upon the adoption of a new plan of charter, existing ordinances remain in force. G.L.(Ter.Ed) c. 43, § 4. Mayor of Cambridge v. Cambridge, 228 Mass. 249, 117 N.E. 312.

Although the record before us is not altogether clear, it sufficiently appears that Cambridge had adopted a Plan E charter, and that officers chosen under that plan were to take office, and actually took office, on January 5, 1942, and that on that day the Plan B charter expired. If we were to go outside the record, that view would find confirmation in Moore v. Election Commissioners of Cambridge, 309 Mass. 303, 35 N.E.2d 222, decided June 23, 1941.

The situation in Cambridge in the summer of 1941 was further complicated by another fact. On July 23, 1941, when St. 1941, c. 505, was enacted, as appears from that statute, the then mayor, whose term of office was to end on January 5, 1942, was being prosecuted for crime. Again, if we were to go outside the record, the facts would appear from Bell v. Treasurer of Cambridge, 310 Mass. 484, 38 N.E.2d 660, and Commonwealth v. Mannos, 311 Mass. 94, 40 N.E.2d 291. By that statute the rights, powers and duties of the mayor were transferred to the president of the city council ‘during the period * * * ending on the first Monday in January,’ 1942, which was January 5, 1942. Those rights, powers and duties were to revest in the mayor only in the event that before that day he should be acquitted. Since the record shows that the president acted as mayor on December 24, 1941, it is inferable that the mayor was not acquitted before that date, if at all.

The plaintiffs claim under two sets of ordinances, the first enacted in December, 1941, and the second in February, 1942.

The first set. On December 9, 1941, the annual pay of members of the police department was increased by ordinance by $200 for each man, and the president of the city council let ten days go by without a veto. On December 23, 1941, the annual pay of members of the fire department was increased by ordinance by $200 for each man, and the president of the city council approved the ordinance on December 24, 1941. In each instance the ordinance provided that it should ‘take effect January 5, 1942.’

The city council acting in 1941 under the Plan B charter retained their legislative powers as long as they held office, unless those powers were restricted by St.1941, c. 505. We assume that they had power, unless so restricted, to enact an ordinance to take effect after their terms of office had expired. Rock v. Pittsfield, Mass., 55 N.E.2d 606.

The defendant city contends that the powers of the city council were restricted by St.1941, c. 505, enacted July 23, 1941. At that time, the mayor was being prosecuted for crime, his term of office and that of the city council were soon to end, and a radical change in the charter was soon to take effect. For the intervening period provision was made that would obviate a special election for mayor. The plaintiffs contend that the limitations imposed by the statute were solely upon the powers of the president as substitute for the mayor, and not upon the powers of the city council. The verbal form and arrangement of the statute lend plausibility to that contention. But looking at the statute and its purpose more broadly we think that contention unsound.

Paragraph (G) of section 1 of the statute, restricting appointments, seems not to be confined to appointments that were to be made by the mayor. The title of the statute, referring not only to the office of mayor, but also to ‘the administration of the affairs of said city,’ indicates that the purpose was not as narrow as the plaintiffs contend. Wheelwright v. Tax Commissioner, 235 Mass. 584, 586, 127 N.E. 523, 37 A.L.R. 920;Opinion of the Justices, 309 Mass. 631, 638 et seq., 35 N.E.2d 676. Section 3 of the statute created what was clearly a limitation upon the power of the city government as a whole in providing that ‘during the period covered by this act, no loan shall be made by said city’-meaning that the city should borrow no money-with a single exception, without the approval of the emergency finance board. Coming to the material paragraph (H) of section 1, the statute provided that ‘during the period covered...