Boston Licensing Bd. v. City of Boston

• Decision Date: 21 October 1983
• Citation: 455 N.E.2d 469,17 Mass.App.Ct. 10
• Parties: BOSTON LICENSING BOARD v. CITY OF BOSTON et al. 1
• Court: Appeals Court of Massachusetts

Page 469

455 N.E.2d 469

17 Mass.App.Ct. 10

BOSTON LICENSING BOARD v. CITY OF BOSTON et al. ¹

Appeals Court of Massachusetts Suffolk.

Argued April 12, 1983.

Decided Oct. 21, 1983.

Jacqueline Lillard Allen, Asst. Corporation Counsel, Boston, for defendants.

Thomas G. Shapiro, Boston, for plaintiff.

Before GRANT, KAPLAN and WARNER, JJ.

WARNER, Judge.

The defendant city of Boston (city) appeals from the entry in the Superior Court of summary judgment for the plaintiff, Boston Licensing Board (licensing board). The licensing board's complaint requests injunctive and declaratory relief to require the city to appropriate the funds which the board determined were necessary to pay its expenses. At issue is the proper construction of the special statute which created the licensing board, St.1906, c. 291, particularly the provisions of §§ 2 and 3, pertaining to the financing of the licensing board. There is no dispute concerning any material fact. Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974).

At least since 1956, the licensing board has submitted annual budgets to the mayor of the city which have been funded by appropriations made by the city council, following recommendations of the mayor, in accordance with statutory appropriations procedures. ² See St. 1909, c. 486, § 3, as amended through St.1974, c. 276, § 53. In February of 1981 the licensing board approved a budget for the 1982 fiscal year in the amount of $247,035. The licensing board then submitted a budget request in this amount to the city, calling it a "budget requisition ... in accordance with the procedure outlined in Chapter 291 of the acts of 1906 as amended." In response, the mayor first advised the licensing board that he would recommend to the city council an appropriation of $124,000. ³ The mayor's final recommendation, made after this action was filed, was for an appropriation of $239,000. In April of 1981, the city advised the licensing board (and all city departments) that no further expenditures (other than for utility expenses) would be approved during the 1981 fiscal year "unless of an emergency nature" and with prior written approval.

Summary judgment was entered which declared: "The [licensing board] may employ such clerk stenographers [sic], office employees and legal assistance ⁴ as it may deem necessary; the expenses therefor and all incidental expenses incurred by the board in the performance of its duties and the exercise of its powers shall be paid by said city upon requisition of the board. Such requisition need not be submitted as part of a budget to the mayor, but shall be paid by the city without further review or change."

The licensing board argues that this declaration is dictated by the provisions of St.1906, c. 291, § 1, which provides in part that "[t]he governor, with the advice and consent of the council, shall appoint from the two principal political parties three citizens of Boston ... who shall constitute a licensing board for said city.... One member of said board shall be designated by the governor as chairman." The requirement that the three appointments be made "with the advice and consent of the council" was repealed by St.1964, c. 740. Opinion of the Justices, 374 Mass. 864, 868, 372 N.E.2d 759 (1978). Statute 1906, c. 291, § 1, as so altered by St.1964, c. 740, also gives the Governor the power to remove any licensing board member "for such cause as he shall deem sufficient."

Section 2 of the 1906 act, as appearing in St.1975, c. 413, ⁵ sets the salaries of the three members of the licensing board and its secretary and states: "Such salaries shall be paid in monthly installments by the city of Boston." Section 3 of the 1906 act, which has not been amended, provides that the "board may employ such clerks, stenographers and office employees, and such legal assistance, as it may deem necessary, and the expense thereof and all incidental expenses incurred by the board in the performance of its duties and the exercise of its powers shall be paid by said city upon requisition of the board." ⁶

The city argues that all appropriations for the licensing board are subject to St.1909, c. 486, § 3, which originally and as amended, ⁷ provides that "[a]ll appropriations to be met from taxes, revenue or any source other than loans, shall originate with the mayor." ⁸

1. "We begin our analysis with the general rule that 'a statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.' " Registrar of Motor Vehicles v. Board of Appeal on Motor Vehicle Liability Policies and Bonds, 382 Mass. 592, ---, Mass.Adv.Sh. (1981) 415, 420, 416 N.E.2d 1373, quoting from Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 368 Mass. 511, 513 (1975). In so construing a statute, we may examine it "in connection with [its] development, [its] progression through the legislative body, the history of the times, prior legislation ... and in the light of the Constitution and of the common law." Commonwealth v. Welosky, 276 Mass. 398, 401, 177 N.E. 656 (1931).

We look first to the language of St.1906, c. 291, §§ 2 & 3: "Such salaries shall be paid ... by the city," and the board's expenses "shall be paid by said city upon requisition of the board" (emphasis supplied). The motion judge considered this language to be "clear and unambiguous." "The word 'shall' is ordinarily interpreted as having a mandatory or imperative obligation." Hashimi v. Kalil, 388 Mass. 607, 609, 446 N.E.2d 1387 (1983). In its context, the use of "shall" in the 1906 act indicates that the Legislature intended to prevent the exercise of discretion on the city's part. See Bloom v. Worcester, 363 Mass. 136, 156 n. 15, 293 N.E.2d 268 (1973). Ordinarily, where "the words of the statute are clear and unambiguous and ... given their ordinary meaning ... yield a workable and logical result, there is no need to resort to extrinsic aids in interpreting the statute." Hashimi v. Kalil, supra at 610, 446 N.E.2d 1387. However, in view of the age of the 1906 act, the possibility of ambiguity in the term "requisition," and the city's argument that the statute is not workable unless the constraints of the appropriation process of the city are superimposed, we do not rely exclusively on the language of the statute.

2. When the 1906 act was passed, and throughout the history of the Commonwealth until the enactment of the Home Rule Amendment, which annulled art. 2 of the Amendments to the Constitution of the Commonwealth by the ratification in 1966 of art. 89 of the Amendments, a municipality had "only those powers which [were] expressly conferred by statute or necessarily implied from those expressly conferred or from undoubted municipal rights or privileges." ⁹ Bloom v. Worcester, 363 Mass. at 157, 293 N.E.2d 268, quoting from Atherton v. Selectmen of Bourne, 337 Mass. 250, 255-256, 149 N.E.2d 232 (1958). See Del Duca v. Town Admr. of Methuen, 368 Mass. 1, 10, 329 N.E.2d 748 (1975). Under the law existing at that time, "a town [was] merely a subordinate agency of State government created for convenient administration." Atherton v. Selectmen of Bourne, supra, and cases cited. Commonwealth v. Plaisted, 148 Mass. 375, 384-387, 19 N.E. 224 (1889). Given this legal and constitutional framework in 1906, it is unlikely that the Legislature could have intended the 1906 act to subject the authority of the licensing board to the fiscal determinations of the mayor and city council. Any power of the mayor and city council to determine the amount of the licensing board's appropriations would have had to be explicitly stated. No such explicit grant of power appears in the 1906 act or in any subsequent amendment. ¹⁰

3. In addition, there are clear indications that the 1906 act and its predecessor, St.1885, c. 323, were passed with the intention of separating the authority of the licensing board from that of the mayor and city council of Boston. It is necessary to do some tracing here. Most of the duties given to the licensing board under the 1906 act were formerly handled for a time by the board of police of the city. Welch v. O'Meara, 195 Mass. 541, 543, 81 N.E. 264 (1907). St.1885, c. 323, § 2. St.1906, c. 291, § 4. The board of police was established by St.1885, c. 323, § 1, to replace the board of police commissioners, which was created by St.1878, c. 244, § 1. The 1878 act gave the board of police commissioners "the powers and duties conferred upon the board of license commissioners, appointed under the provisions of [St.1875, c. 99, § 20]." St.1878, c. 244, § 2.

Section 1 of the 1878 act empowered the mayor of Boston to appoint "three able and discreet persons to constitute a board of police commissioners in said city." Section 3 of that act stated, "The compensation of the commissioners and the officers of each grade shall be fixed from time to time by ordinances of the city council." Although there was no explicit provision for other expenses of the board, the 1878 act clearly made the board subject to the authority of the mayor and city council. Statute 1885, c. 323, § 1, took the appointing authority from the mayor and gave it to the Governor "with the advice and consent of the council." Section 4 specified the salaries of the board members, "which shall be paid monthly from the treasury of the city of Boston." This section also required the city to provide suitable facilities for the board and provided: "All expenses for the maintenance of buildings, the pay of the police and all incidental expenses incurred in the administration of the said police shall be paid by the city of Boston upon the requisition of said board."

While we do not place great weight on the preenactment...