Dudley v. City of Cambridge

• Decision Date: 01 June 1964
• Citation: 199 N.E.2d 208,347 Mass. 543
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Edward L. DUDLEY v. CITY OF CAMBRIDGE et al.

Page 208

199 N.E.2d 208

347 Mass. 543

Edward L. DUDLEY v. CITY OF CAMBRIDGE et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued May 4, 1964.

Decided June 1, 1964.

John F. Killeen, Worcester, for plaintiff.

Richard D. Gerould, City Sol., for defendants.

Before WILKINS, C. J., and WHITTEMORE, CUTTER, KIRK, and SPIEGEL, JJ.

KIRK, Justice.

The plaintiff, a permanent member of the uniformed fire fighting force of the city of Cambridge (the city), weeks declaratory relief against the city, the city manager, and the chief of the fire fighting force. The bill, which contains sixty-four paragraphs of allegations and twelve prayers for relief, comprises fifteen pages of the printed record. The bill is so prolix in content, diffuse in language, and obscure in purpose as clearly calling for a demurrer. Neither the Superior Court nor this court should be taxed with such circumlocutory pleading. The city, however, undertook to answer to the merits. Our understanding of the issues is aided greatly by the terse finding of material facts and rulings of law made by the judge. The evidence is reported. The plaintiff appeals from a final decree which resolved all issues against him.

In the main the plaintiff seeks a determination of his rights with respect to hours of duty and holiday pay. Involved in this determination is the validity of two ordinances passed by the city council. In turn, the validity of the ordinances depends upon whether the city is bound by certain enactments of the Legislature under which the city council purported to act in voting the ordinances.

We first consider the validity of ordinance 508 passed by the city council on September 26, 1955, which provided '[n]o member of the fire department shall be required to perform a regular tour of duty of more than forty-two hours in any seven day period.' At the time ordinance 508 was passed, however, the provisions of G.L. c. 48, § 58B, inserted by St.1945, c. 413, having been accepted by the voters of the city on November 7, 1950, were in effect. The statute provided in substance that the average weekly hours of duty of the permanent members of the uniformed fire fighting force 'shall be * * * established by the * * * officers having charge of fire fighting' and 'shall not exceed forty-eight in number' (emphasis supplied). The judge, therefore, was correct in his determination that ordinance 508 was without legal effect because the city council under the effective statute was without authority to deal with the subject matter.

This conclusion is not, as argued, affected by G.L. c. 40, § 21A, inserted by St.1951, c. 798, § 5, which provides that a city 'by ordinance, unless repugnant to the charter of such city, may establish the hours, days and weeks of work * * * for any or all employees of such * * * city * * *' (emphasis supplied). Notwithstanding the broad terms of G.L. c. 40, § 21A, we perceive no legislative intent, express or implied, that it should supersede or repeal the provisions of G.L. c. 48, § 58B. Strong terms are required to show such an intent. Haffner v. Director of Pub. Safety of Lawrence, 329 Mass. 709, 713-714, 110 N.E.2d 369, and cases cited. This would seem to be especially true when the Legislature has made fire fighters, as distinguished from municipal employees in general, the subject of a somewhat elaborate statutory scheme with respect to hours of duty and related conditions of employment. G.L. c. 48, §§ 56, 57, 57A, 57D, 58A, 58B, 58C, and 59.

The plaintiff next urges upon us the validity of ordinance 593 voted by the city council on June 23, 1958. The ordinance is phrased in precisely the same language as ordinance 508 which we have already considered. He bases his contention upon St.1957, c. 713, which amended G.L. c. 48 by striking out § 58B as it theretofore read and inserting a new § 58B. We have set out in the footnote the full text of St.1957, c. 713, indicating new language in italics. ¹ The judge ruled that ordinance 593, purporting to reduce the hours of duty of fire fighters to forty-two, in so far as it depends for its validity on St.1957, c. 713, was without legal effect because St.1957, c. 713, had never been accepted by the city. The judge was right. A fair reading of St.1957, c. 713, reveals two aspects which support this conclusion. As to the first aspect, § 1 of St.1957, c. 713, by its own explicit terms makes acceptance by the voters of a city of all its provisions, including the proviso, a condition precedent to its becoming effective. The question incorporated in § 1 for submission to the voters clearly refers to the § 58B in which it appears and not to the § 58B which had been struck. This question, which is prospective in purpose, has never been submitted to the voters of the city. Consequently, the provisions of the new § 58B have never been accepted by it. As to its second aspect, § 2 of St.1957, c. 713, in effect affirms the 'acceptance heretofore made' by the city of § 58B as it read on November 7, 1950. It is, therefore, the latter statute by which the city is bound. Under it the city council was without power to deal with the subject matter of ordinance 593, and its vote on June 23, 1958, was a nullity.

Our view is confirmed by a consideration of the serious effects of a different result: the final determination of the hours of duty would be shifted from the executive to the legislative branch of the municipal government because the new statute limits the maximum number of hours of duty which may be established by the officers in charge but prescribes no minimum to which they may be reduced by the city council; upon a reduction in hours a number of additional fire fighters would be required to provide the same...