Chief of Police of Dracut v. Town of Dracut

• Decision Date: 11 May 1970
• Citation: 357 Mass. 492,258 N.E.2d 531
• Parties: CHIEF OF POLICE OF DRACUT v. TOWN OF DRACUT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 531

258 N.E.2d 531

357 Mass. 492

CHIEF OF POLICE OF DRACUT v. TOWN OF DRACUT et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Dec. 2, 1969.

Decided May 11, 1970.

Philip S. Nyman, Lowell, for Dracut Police Relief Ass'n, Inc.

Edward J. Owens, Town Counsel, for Town of Dracut and another.

Edward R. Lembo, Framingham, for plaintiff.

Before SPALDING, CUTTER, SPIEGEL, REARDON and QUIRICO, JJ.

QUIRICO, Justice.

This is a suit in equity brought by Wilfred Paquette (chief) in his official capacity as the chief of police of the town of Dracut (town), against the town, its board of selectmen (selectmen) and the Dracut Police Relief Association, Inc. (association), to determine and declare certain rights of the chief and the selectmen respectively in the government and operation of the town's police department. The suit has arisen because the selectmen negotiated and executed a collective bargaining agreement (agreement) between the town and the association, the collective bargaining employee organization for the members of the police department. The chief alleges that the agreement contains provisions which go beyond the authority given to the selectmen by G.L. c. 149, §§ 178G--178N, inserted by St.1965, c. 763, § 2, as amended through St.1969, c. 341; and that it infringes upon his exclusive authority under G.L. c. 41, § 97A, as appearing in St.1948, c. 595. The case is before us on the appeals of all the defendants from the final decree of the Superior Court substantially upholding the contentions of the chief and enjoining all of the defendants from acting under, enforcing or implementing certain provisions of the agreement.

The case was submitted to the trial judge for decision as a case stated. G.L. c. 231, § 126. Stuart v. Sargent, 283 Mass. 536, 531, 186 N.E. 649; Murphy v. Boston, 337 Mass. 560, 561, 150 N.E.2d 542. The facts agreed upon are those alleged by the plaintiff in his bill and admitted by the defendants in their answers, plus certain other facts stated by counsel in open court and entered in the transcript of the hearing. The relevant facts thus agreed upon are set forth in the following paragraphs to the extent necessary for the purposes of this opinion.

On March 7, 1955, the town accepted G.L. c. 41, § 97A, ¹ and thereafter operated its police department under the provisions of that law until the occurrence of the events hereinafter described. On May 31, 1967, the association informed the selectmen by letter that it had secured signatures from ninety-five per cent of the members of the town's police department designating it as their exclusive bargaining agent, and it requested the selectmen to recognize the association as the exclusive collective bargaining agent for the members of the police department. The selectmen granted that request on July 27, 1967. On August 1, 1967, they wrote to the chief designating him as their representative for negotiations with the association. On the same date the chief sent the selectmen a letter stating that he would not serve as their representative for such negotiations, and he did not serve.

Thereafter the selectmen personally conducted negotiations with representatives of the association on the terms of a proposed collective bargaining agreement between the town and the association. On October 26, 1967, the town, acting through its selectmen, and the association, acting through its officers, signed a collective bargaining agreement incorporating the terms negotiated by them prior to October 16, 1967, and containing the provisions which the chief contends are invalid.

After the completion of the negotiations but before the execution of the agreement, a town meeting was held on October 16, 1967. At that meeting it was voted 'that the Town rescind the provisions of Section 97A of Chapter 41, of the General Laws relative to the establishment of Police Departments in certain towns accepted under Article 47 of the Annual Town Meeting of March 7, 1955, and to accept in place thereof the provisions of Section 97 of Chapter 41 of the General Laws, which is an Act relative to the establishment of Police Departments in certain towns (quoting the text of this section).' The principal difference between the two sections is that, under § 97, '(t)he selectmen may make suitable regulations governing the police department and the officers thereof'; whereas under § 97A '(t)he chief of police * * * shall from time to time make suitable regulations governing the police department, and the officers thereof, subject to the approval of the selectmen (and in some circumstances without such approval).' The latter section also provides that the chief of police 'shall be in immediate control of all town property used by the department, and of the police officers, whom he shall assign to their respective duties and who shall obey his orders.'

One basic question to be decided in this case is whether the action of the town meeting of October 16, 1967, operated as a rescission of its earlier acceptance of G.L. c. 41, § 97A, on March 7, 1955. Section 97A provides for its acceptance 'by a vote at an annual town meeting,' but it contains no provision permitting a town to rescind its acceptance thereof. It has been the law that '(i)n the absence * * * 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.' Brucato v. Lawrence, 338 Mass. 612, 615--616, 156 N.E.2d 676, 679. See Donnelly v. Dover-Sherborn Regional Sch. Dist., 341 Mass. 497, 500, fn., 170 N.E.2d 694; Oleksak v. Westfield, 342 Mass. 50, 52--53, 172 N.E.2d 85; McDonough v. Lowell, 350 Mass. 214, 216, 214 N.E.2d 50.

The town and its selectmen concede that if this is still the law then the town was without authority to rescind its prior acceptance of § 97A. They contend on appeal, however, that the material changes made in art. 2 of the Amendments to the Constitution of the Commonwealth by art. 89 of the Amendments, commonly and herein referred to as the Home Rule Amendment, ratified on November 8, 1966, render this rule obsolete.

It is not clear that the effect of the Home Rule Amendment is open on the record before us. Although this case was entered more than one year after its ratification, there is no reference to it in any of the pleadings. Nor is there any reference to it in the trial judge's decision. If this question is now open, we think it is without merit. Section 8 of the Home Rule Amendment expressly provides that '(t)he general court shall have the power to act in relation to cities and towns, but only by general laws which apply alike to all cities, or to all towns, or to all cities and towns, or to a class of not fewer than two * * *.' The same limitation appears in § 6 of the Home Rule Amendment which provides in part that 'Any city or town may, by the adoption, amendment, or repeal of local ordinances or by-laws, exercise any power or function which the general court has power to confer upon it, which is not inconsistent with the constitution or laws enacted by the general court in conformity with powers reserved to the general court by section eight * * *' (emphasis supplied). General Laws c. 43B, inserted by St.1966, Ex.Sess., c. 734, § 1, and entitled the Home Rule Procedures Act, was enacted to implement the Home Rule Amendment. Section 13 of this act repeats substantially all the language of § 6 of the Home Rule Amendment, and in addition thereto it provides in part that '(n)othing in this section shall be construed to permit any city or town, by ordinance or by-law, to exercise any power or function which is inconsistent with any general law enacted by the general court before November eighth, nineteen hundred and sixty-six which applies alike to all cities, or to all towns, or to all cities and towns, or to a class of not fewer than two.'

General Laws c. 41, § 97A, is such a general law, and the fact that a town has the option whether or not to adopt it does not change its character. It therefore falls within the powers reserved to the General Court by the Home Rule Amendment and by the Home Rule Procedures Act. In enacting the Home Rule Procedures Act (G.L. c. 43B) the Legislature included no grant of authority to municipalities to rescind, by unilateral action, their prior acceptance of any provision of the General Laws. That omission may reflect the Legislature's concern that if municipalities had unbridled authority to rescind prior acceptance of basic provisions of the General Laws by unilateral action, there might result frequent and precipitous changes in the administration of municipal affairs which might produce chaos, all contrary to the public interest. Consequently, we hold that the Home Rule Amendment and the Home Rule Procedures Act do not render inoperative the rule laid down in Brucato v. Lawrence supra. ² Thus, the vote of the town meeting on October 16, 1967, to rescind the town's earlier acceptance of G.L. c. 41, § 97A, was a nullity. The operation of the town's police department is therefore still governed by § 97A and not by § 97. The trial judge's similar conclusion was correct.

Turning now to a consideration of the respective roles of the selectmen and the chief under § 97A it is clear that both have some authority with respect to the police department. The selectmen establish the department, appoint 'a chief of police and such other officers as they deem necessary, and fix their compensation.' The chief is authorized to ...