Brucato v. City of Lawrence

• Decision Date: 03 March 1959
• Citation: 338 Mass. 612,156 N.E.2d 676
• Parties: Ignatius BRUCATO and another v. CITY OF LAWRENCE and others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 676

156 N.E.2d 676

338 Mass. 612

Ignatius BRUCATO and another v. CITY OF LAWRENCE and others.

Supreme Judicial Court of Massachusetts, Essex.

Argued Feb. 5, 1959.

Decided March 3, 1959.

John J. Griffin, Lawrence, for plaintiffs.

James P. Kane, City Sol., Lawrence, for defendants.

Before WILKINS, C. J., and RONAN, SPALDING, WILLIAMS and CUTTER, JJ.

CUTTER, Justice.

This is a bill for a declaratory decree brought by a social worker and a senior clerk typist in the public welfare department of the city of Lawrence, in behalf of themselves and all other employees of the department. The plaintiffs on September 16, 1957, were receiving the minimum salary then provided under a compensation plan established under G.L. c. 31, § 47D (inserted by St.1941, c. 402, § 1). On September 16, 1957, the city council voted to accept G.L. c. 31, § 47E (inserted by St.1951, c. 537), ¹ which, subject to local acceptance of the section as therein stated, provided that certain anual 'step-rate' pay increases 'be given' to employees under the compensation plan 'on the first day of July following the anniversary of the date of their receiving the minimum salary for the position which they hold.' The city clerk on September 17, 1957, notified the director of civil service and the State Secretary ² of the September 16 vote. On January 13, 1958, the city council voted unanimously to rescind the action taken on September 16, 1957, and the director of civil service and the State Secretary were notified also of this vote.

The mayor refused to provide any 1957 supplemental appropriation to pay for increases in pay of employees of the welfare department in that year. The city auditor disallowed payment of any increase in salary to the employees of the welfare department on the ground that he believed 'payment would be a violation of' G.L. c. 44, § 33A (as amended through St.1955, c. 358). ³ The city budget for 1957 and been adopted on March 4, 1957, and 'did not include a provision for any increases for the' plaintiffs.

The plaintiffs ask for (a) a binding declaration that the provisions of § 47E (see footnote 1, supra) were accepted on September 16, 1957, by a still valid vote of the city council; (b) a determination of the date on which the plaintiff Brucato and other employees of the welfare department became entitled to the step rate increase provided by § 47E; and (c) appropriate enforcement of § 47E in Lawrence. The case was reported to this court without decision (see G.L. c. 214, § 31) upon the pleadings and a statement of agreed facts.

1. It is not unusual for the Legislature to provide that a statute expressed in terms of general application shall take effect in each city and town only upon its acceptance by such city or town, or by some public body in that community. Graham v. Roberts, 200 Mass. 152, 157-158, 85 N.E. 1009; Barnes v. Mayor of Chicopee, 213 Mass. 1, 4-5, 99 N.E. 464; Cunningham v. Mayor of Cambridge, 222 Mass. 574, 576-577, 111 N.E. 409; Wright v. Walcott, 238 Mass. 432, 438, 131 N.E. 291, 18 A.L.R.2d 1242; In re Opinion of the Justices, 303 Mass. 631, 639, 22 N.E.2d 49, 123 A.L.R. 199; School Comm. of Gloucester v. Gloucester, 324 Mass. 209, 210, 85 N.E.2d 429. See McQuillin, Municipal Corporations (3d ed.) §§ 4.10, 4.49, 9.14. Cf. Mount Washington v. Cook, 288 Mass. 67, 74, 192 N.E. 464; Mayor of Gloucester v. City Clerk of Gloucester, 327 Mass. 460, 464, 99 N.E.2d 452; Robinson v. Selectmen of Watertown, 336 Mass. 537, 546, 146 N.E.2d 900. As vote of the designated body accepting the legislation for any particular city or town is thus made a condition precedent to any effectiveness of the statute in that city or town. In local matters of the type here involved the Legislature, of course, has power to take action by statute without any provision for acceptance by the several cities and towns, and if the Legislature considers it 'best to require acceptance, it * * * [has] power to select whom it * * * [deems] wise to act in accepting.' See Sampson v. Treasurer & Receiver Gen., 282 Mass. 119, 123, 184 N.E. 465, 466. Cf. the constitutional limitations on changing forms of town government contained in Mass. Const. arts. 2, 70, of the Amendments; Moore v. Election Com'rs of Cambridge, 309 Mass. 303, 314-316, 35 N.E.2d 222; Opinion of the Justices, 328 Mass. 674, 676-677, 105 N.E.2d 565. Cf. also Horrigan v. Pittsfield, 293 Mass. 17, 18-19, 199 N.E. 382.

The Legislature may provide that a city or town, which once accepts a statute (enacted subject to local acceptance), shall have the power to revoke its acceptance. An intention that this power shall exist may be found in an express provision to that effect, as in the provision for absent voting in cities and towns, G.L. c. 54, § 103A (as amended through St. 1948, c. 477, § 2), or in the fact that an annual or periodic option is to be exercised locally as, for example, in the provisions with respect to liquor licenses, G.L. c. 138, § 11, 11A, as amended, or in the opportunity for changes in the form of city charters made possible under G.L. c. 43, §§ 1, 2, 7-13, 45-116, as amended. In the absence, however, of some indication in the language, the form, or the subject matter of a particular statute enacted subject to local acceptance, that an acceptance once given may be revoked, the effect of a valid acceptance by a city or town is to make the statute operative in that community until the statute is repealed or amended. Once the condition precedent stipulated by the Legislature to the taking effect of the statute in the community is satisfied, it becomes applicable statute law, subject to change, as in the case of other statutes, only by subsequent action of the Legislature. See Northern Trust Co. v. Snyder, 113 Wis. 516, 532-533, 89 N.W. 460; Holt Lumber Co. v. Oconto, 145 Wis. 500, 505-507, 130 N.W. 709; McQuillin, Municipal Corporations (3d ed.) § 9.15.

In § 47E, there is no express provision for revocation of a city's acceptance of the section, once validly given. Nothing in the form of acceptance prescribed or in the subject matter of the section indicates that the city council's power with respect to acceptance of § 47E would not be exhausted after a valid election to accept. If the acceptance of § 47E on September 16, 1957, was effective, the city could not thereafter rescind its acceptance, and the vote of January 13, 1958, was a nullity. On the other hand, if the acceptance of September 16, 1957, was not within the powers given to the city council by the Legislature, or was given at a time when the city council could not properly act on the subject matter, the vote of January 13, 1958, may well have been an appropriate recognition of any such invalidity in the prior acceptance.

2. The city contends that the acceptance of § 47E was invalid because made in violation of G.L. c. 44, § 33A (see footnote 3, supra), a section of the municipal finance act to which the 'Legislature has always attached importance * * * in the interest of prudent [municipal] fiscal management and continued solvency.' Foley v. Lawrence, 336 Mass. 60, 64-65, 142 N.E.2d 588, 591. Cf. Mayor of Holyoke v. Chief of Police of Holyoke, 328 Mass. 253, 258, 103 N.E.2d 255. This section contains two prohibitions here pertinent. The first is that 'no ordinance providing for an increase in * * * salaries * * * shall be enacted except by a two thirds vote of the city council, nor unless it is to be operative for more than three months during the financial year in which it is passed' (subject to a proviso not here pertinent). The second is that no 'increase in rate [shall be] made by ordinance, [or] vote * * * during the financial year subsequent to the submission of the annual budget unless provision therefor has been made by means of a supplemental appropriation.'

A valid acceptance of § 47E on September 16, 1957, would have been effective ten days thereafter since by § 47E any valid acceptance is to be 'subject to the provisions of the charter.' ⁴ Under § 47E, the employees within the language of the section are to be 'given an annual step-rate increase * * * on the first day of July following the anniversary of the date of their receiving the minimum salary for the position which they hold.' If accepted as of September 26, 1957, § 47E could not result in any step rate increase for any employee until July 1, 1958, unless the section must be construed to operate retroactively after its acceptance by a city. Indeed, on July 1, 1958, unless § 47E were to be applied in some degree retroactively, no employee would receive an initial step rate increase if such employee had not had, between the effective date of the acceptance of the act and July 1, 1958, an 'anniversary of the date of * * * receiving the minimum salary for the position' which such employee holds. Statutes like § 47E, affecting substantive rights, in the absence of a clear contrary legislative intention, will be construed to operate prospectively only and not retroactively. Campbell v. Boston, 290 Mass. 427, 429, 195 N.E. 802. See Lindberg v. State Tax Comm., 335 Mass. 141, 143, 138 N.E.2d 753. Cf. Foley v. Springfield, 328 Mass. 59, 62, 102 N.E.2d 89. There is no indication in § 47E that any retrospective operation of the section was intended. Accordingly, its acceptance would have authorized no expenditure in 1957. There could have been no violation of the second prohibition of § 33A (if applicable at all) for no supplemental appropriation would have been needed in 1957.

The requirement (in the second sentence of § 33A as amended by St.1947, c. 298, § 1) that an ordinance increasing salaries be in effect for three months during the then current financial year was obviously designed to prevent city councils (see Boston College Law School 1955, Ann. Surv. of Mass. Law, p. 199) ⁵ from imposing in one year upon the taxpayers of later years the burden of salary increases not to take effect until these later...