Barnard v. City of Lynn

• Decision Date: 03 July 1936
• Citation: 3 N.E.2d 264,295 Mass. 144
• Parties: BARNARD et al. v. CITY OF LYNN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

295 Mass. 144

3 N.E.2d 264

BARNARD et al. v. CITY OF LYNN.

Supreme Judicial Court of Massachusetts, Essex.

July 3, 1936

Report from Superior Court, Essex County; Dillon, Judge.

Eleven actions of contract by Fred Barnard, James Carroll, Charles Goffi, Thomas Hegan, Thomas Ledwell, John J. McGrath, Patrick Monahan, Harry E. Reynolds,, Thomas J. Ryan, Frank Smith, and Stephen Welch against the City of Lynn, heard together by the trial judge without a jury who found for the plaintiffs and reported the cases.

Judgment in each case for the plaintiffs.

W. E. Sisk and R. L. Sisk, both of Lynn, for plaintiffs.

P. F Shanahan, City Sol., and John M. Cashman, Asst. City Sol both of Lynn, for respondent.

LUMMUS, Justice.

The eleven plaintiffs are laborers employed by the city of Lynn in its refuse and garbage department. All are in the classified civil service under G.L. (Ter.Ed.) c. 31, § 1 et seq. By ordinance each is entitled to receive 70 cents an hour, or $30.80 a week. The economic situation of the city led to the adoption of a budget appropriating to each department for the year 1932 a sum sufficient to pay nine-tenths of the salaries and wages in the department. No reduction in salary or wages was made. Instead, each officer and employee was asked to relinquish to the city one-tenth of his compensation, and to sign a contract to that effect. All the employees of the refuse and garbage department did so except the elevent plaintiffs.

The plaintiffs received full pay until December 1, 1932, while other employees were receiving only nine-tenths of the pay fixed by the ordinance. On that day, there remained of the appropriation for that department only enough to pay to the other employees their reduced compensation for December, without paying anything to the elevent plaintiffs. They had been warned early in the year that employees who insisted upon full pay would probably receive no pay during December whether they worked or not, because of lack of money. They did in fact work during December, and brought these actions of contract to recover their wages for the month. The trial judge, sitting without a jury, found in their favor, and reported the cases.

These cases do not involve the right of a city upon economic grounds to reduce by general ordinance the wages of employees within the civil service, which was discussed in Alger v. Justice of District Court of Brockton, 283 Mass. 596, 186 N.E. 838, Selectmen of Milton v. Justice of District Court of East Norfolk, 286 Mass. 1, 189 N.E. 607, and Openshaw v. Fall River, 287 Mass. 426, 192 N.E. 46. Neither do they involve the right of a city to abolish a position or to suspend an employee because of lack of work or funds, which was recognized in Garvey v. Lowell, 199 Mass. 47, 85 N.E. 182,127 Am.St.Rep. 468,Smith v. New Bedford, 269 Mass. 345, 168 N.E. 806,Yunitz v. Chelsea, 270 Mass. 179, 169 N.E. 792,McDonald v. City Manager of Fall River, 273 Mass. 368, 173 N.E. 593,Whalen v. City Forester of Waltham, 279 Mass. 287, 181 N.E. 246, and Commissioner of Labor and Industries v. Downey (Mass.) 195 N.E. 742. Here the wages were not reduced, but remained as fixed by the ordinance; the plaintiffs were not suspended, but remained at work during the entire peiod for which they seek to recover their wages.

The city had no right to require the plaintiffs to surrender a part of their lawful pay. Campbell v. Boston (Mass.) 195 N.E. 802. The fact that other persons engaged in similar employment made a voluntary reduction in their pay is legally immaterial. If any employee had to be suspended for lack of work or funds, rule 38 (3) of the civil service required the suspension of the one most recently employed. Tremblay v. Mayor of Fall River, 263 Mass. 118, 160 N.E. 322; Smith v. New Bedford, 269 Mass. 345, 168 N.E. 806; McDonald v. City Manager of Fall River, 273 Mass. 368, 173 N.E. 593; Ault v. Hurley (Mass.) 196 N.E. 855. The city had no right to equalize the annual earnings of the employees, and in effect to exact a contribution from the plaintiffs, by letting them work through December without paying them.

The main defence is, that the annual appropriation for the refuse and garbage department was insufficient to pay all the laborers in that department their full wages for the year and that when the plaintiffs continued to work in December they knew that any liability incurred by the city to them was incurred in violation of G.L.(Ter.Ed....