Doherty v. City of Woburn

• Decision Date: 01 March 1963
• Citation: 345 Mass. 523,188 N.E.2d 866
• Parties: Charles A. DOHERTY et al. v. CITY OF WOBURN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 866

188 N.E.2d 866

345 Mass. 523

Charles A. DOHERTY et al. v. CITY OF WOBURN.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Feb. 4, 1963.

Decided March 1, 1963.

James F. Freeley, Jr., Boston, for plaintiffs.

James F. Lawton, Jr., City Solicitor, for defendant.

Before WILKINS, C. J., and SPALDING, CUTTER, KIRK and REARDON, JJ.

CUTTER, Justice.

This is an action at law in seventy counts, ¹ each of which is in behalf of a particular plaintiff employed by the city's department of public works (the department). Each employee seeks to recover the excess of (a) the wages to which the employee claims to be entitled by virtue of action of the Woburn city council in 1958 and 1959, over (b) the wages actually paid to the employee in accordance with the rates in effect prior to the council action. An auditor made findings, which by stipulation have been treated as final and as constituting all the material facts. The case has been reported without decision.

Prior to 'December 1958, the salaries of the plaintiffs * * * were not fixed by law or by ordinance. Their salaries were under the executive power of the mayor and the superintendent of public works acting under the general supervision and control of the mayor.' On December 18, 1958, the city council passed to be ordained an ordinance 'fixing higher rates of pay for employees of the department,' including most of the plaintiffs. The mayor vetoed the ordinance and on December 30, 'the council passed the ordinance over the veto.' On December 30, also, the council passed to be ordained a second ordinance fixing higher rates of pay for other employees of the department, including the rest of the plaintiffs. The mayor vetoed this second ordinance on December 31, and on January 8, 1959, the council passed it over his veto. 1958 was not an election year. The ordinances were enacted by more than a two-thirds vote of the council and prior to the submission of the 1959 annual budget. The city council by its action 'sought to bring the plaintiffs * * * within the coverage of' G.L. c. 44, § 33A, as amended, ² 'by one joint action in which they placed the plaintiffs under ordinance and granted them an increase in pay effective' January 1, 1959. 'No appropriation was submitted or passed up to the date of the action of the council in December 1958 to provide funds to pay the salary increases granted. * * * The * * * council never requested the mayor by vote to provide the appropriation necessary to cover the salary increases granted to the plaintiffs. * * * No provision was made by the * * * council to cover the cost of the salary increases by means of a supplemental appropriation.'

1. The first ordinance was finally passed on December 30, 1958, over the mayor's veto by a two-thirds vote of the council, to become effective on January 1, 1959. This action (since 1958 was not an election year) met the requirements of the proviso in the second sentence of § 33A (see [345 Mass. 526] fn. 2, supra, at point [D]). ³ We think a salary is fixed by ordinance within the meaning of the first sentence of § 33A, even if that ordinance also establishes a rate of pay in excess of a rate previously paid to the affected employees and even if the salary of such employees was not theretofore fixed by ordinance. In effect, such an ordinance for the first time (see Councillors of Brockton v. Gildea, 343 Mass. 631, 633-634, 180 N.E.2d 77) fixes by ordinance the salaries thereby established.

The second ordinance complied with the second sentence of § 33A. It was an ordinance (see point [A], fn. 2, supra) providing for an increase in the wages of municipal employees, enacted (see point [B], fn. 2) by a two-thirds vote, and it was (see points [C] and [F], fn. 2) to be operative for more than three months in the year in which it was passed, 1959. The council's action with respect to the second ordinance was not complete until January 8, 1959, when it was passed over the mayor's veto. See St.1897, c. 172, § 25; Forbes v. Woburn, 306 Mass. 67, 71, 27 N.E.2d 733. Cf. Minnie v. Chicopee, Mass., 184 N.E.2d 325. ^a

The last sentence of § 33A (point [F], fn. 2) does not affect either ordinance. Each ordinance was to be operative for more than three months during 1959. The next to the last sentence (point [E], fn. 2) also does not affect either ordinance. The increased salaries provided by each ordinance were to be paid from appropriations of the 1959 financial year and action on each ordinance was completed prior to the submission of the 1959 budget. There was no occasion for any supplemental appropriation. See Brucato v. Lawrence, 338 Mass. 612, 617, 156 N.E.2d 676. The 1955 amendment of § 33A inserting the proviso (point [D], fn. 2) might have been made more clearly applicable to the next to the last sentence (point [E], fn. 2) of § 33A, as well as to the preceding sentence. The context of the proviso, however, and the legislative history of the amendment indicate to us that this application was intended. See fn. 3, supra. Cf. Foley v. Lawrence, 336 Mass. 60, 61, 63-64, 142 N.E.2d 588 (an attempt to increase salaries by ordinance adopted November 13 in an election year to become effective November 24 in that year).

2. There is no merit to the city's contention that the council was precluded from adopting the two ordinances by specific provisions of its charter found in St.1897, c. 172, §§ 16, 22, 40. ⁴ Fixing of salaries did not constitute the employment of labor or the making of contracts. Such action as fixing salaries is the type of power frequently exercised by legislative bodies. It was not executive action forbidden to the council. See Gorman v. Peabody, 312 Mass. 560, 562-564, 45 N.E.2d 939; Rhyne, Municipal Law, §§ 8-15, 8-16. Cf. Fluet v. McCabe, 299 Mass. 173, 178-180, 12 N.E.2d 89. Indeed, G.L. c. 41, § 108A (as amended through St.1948, c. 351), permits a city by ordinance to establish employee classifications and salary plans. ⁵ See Amelotte v. Worcester, 343 Mass. 155, 157, 177 N.E.2d 775. See also Robinson v. Selectmen of Watertown, 336 Mass. 537, 541-542, 146 N.E.2d 900. The passing of these ordinances did not constitute 'expenditure of public money' or the incurring of 'liability' (see Fisher v. Holyoke, 342 Mass. 669, 673, 175 N.E.2d 393) although the first sentence of § 33A required budget provision for the salaries thereby fixed.

3. The ordinances validly fixed the salaries, effective January 1, 1959, of the employees included within their scope. It was the duty of the mayor to include the salaries thus fixed in the 1959 budget, and in subsequent budgets for each such employee who was to be continued in the service of the city during such years, respectively. See Minnie v. Chicopee, Mass., 184 N.E.2d 325. ^b Cf. McQuade v. Springfield, 323 Mass. 715, 717, 84 N.E.2d 30. The city has not argued that the auditor did not correctly find the amounts of additional compensation due to each plaintiff, if additional compensation was due at all. Each plaintiff is entitled to recover the additional pay found by the auditor to be due until July 25, 1960. The auditor's report does not show that any demand was made for the additional compensation owing to the plaintiffs prior to the commencement of these proceedings on July 26, 1960. Accordingly, each plaintiff is entitled to recover interest only from that date. See Mayor of Cambridge v. Cambridge, 228 Mass. 249, 253, 117 N.E. 312; Crowley v. Boston, 342 Mass. 344, 350-351, 173 N.E.2d 647; Davidson v. Robie, Mass., 187 N.E.2d 371. ^c The case is remanded to the Superior Court for the entry of judgments in accordance with this opinion.

So ordered.

1 This long declaration (in a proceeding originally commenced on July 26, 1960, as a petition for a writ of mandamus and subsequently amended to an action of contract) consumes ninety-three pages of the printed record, which contained only fourteen other pages. No useful purpose has been served by printing all of it, especially since the auditor's report constitutes a case stated. Abrams v. Reynolds Metals Co., 340 Mass. 704, 705, 166 N.E.2d 204. It would have been appropriate for the parties by agreement, or for the judge by his report, to have caused to be printed not more than one count of the declaration as representative of each group of counts applying to any one separate class of employees among the plaintiffs. The original declaration, or a copy, could have been ordered transmitted to this court without printing. Such saving of expense might also have been obtained by application to this court or a single justice. See Rules for the Regulation of Practice before the Full Court, Rules 1, 4, 10 (see amendment, November 5, 1962), 328 Mass. 692,...