Foley v. City of Lawrence

• Decision Date: 08 May 1957
• Citation: 336 Mass. 60,142 N.E.2d 588
• Parties: Vincent P. FOLEY and others v. CITY OF LAWRENCE and others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 588

142 N.E.2d 588

336 Mass. 60

Vincent P. FOLEY and others v. CITY OF LAWRENCE and others.

Supreme Judicial Court of Massachusetts, Essex.

Argued April 3, 1957.

Decided May 8, 1957.

Michael J. Batal, Lawrence, for plaintiffs.

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

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

CUTTER, Justice.

Each of the plaintiffs is a member of either the police department or the fire department of the city of Lawrence. They bring this bill under G.L. (Ter.Ed.) c. 231A, in behalf of themselves and all other members of these departments, against the city, the mayor and the director of finance, the city autitor and the city treasurer to obtain a binding declaration with respect to the validity of an ordinance adopted by the city council on November 13, 1956 (and to become effective November 24, 1956 ¹), increasing all salaries in these departments by ten per cent. This ordinance was presented to the city council as an initiative petition signed by more than ten per cent of the number of registered voters voting for mayor at the last preceding city election, a number sufficient to meet the requirements of the applicable provisions of the city charter, St.1911, c. 621, Part II, § 64, ² and was passed without alteration.

Payrolls covering the periods November 18-24, 1956, and November 25-December 1, 1956, for the two departments (and containing the ten per cent increase beginning with November 24) were submitted to the city auditor for approval as required by G.L. (Ter.Ed.) c. 41, § 52. The auditor refused to approve the payrolls on the ground that the ordinance passed on November 13 was invalid under a section of the municipal finance act, G.L. (Ter.Ed.) c. 44, § 33A, as appearing in St.1955, c. 358, which reads in part: 'The annual budget shall include sums sufficient to pay * * * salaries * * * fixed by law or by ordinance. Notwithstanding any contrary provision of any city charter, no ordinance providing for an increase in the salaries or wages of municipal officers or employees shall be enacted * * * unless it is to be operative for more than three months during the financial year in which it is passed; provided, however, that in any year other than a regular municipal election year, ordinances may be enacted by a two thirds vote during the month of December providing for an increase in * * * salaries and wages * * * to become effective as of January first of the next ensuing year. No new position shall be created or increase in rate made by ordinance, vote or appointment during the financial year subsequent to the submission of the annual budget unless provision therefor has been made by means of a supplemental appropriation. * * *'. (Emphasis supplied.)

No supplemental appropriation wqs passed by the city council to meet the salary increase. Under the city charter (St.1911, c. 621, Part II, § 5) it was provided (when the initiative petition was being considered) that the municipal election 'shall take place annually on the second Tuesday of December, and the municipal year shall begin * * * the first Monday in January, and shall continue until * * * the first Monday of the following January'. (Emphasis supplied.) See also § 3 and § 6 as amended by St.1914, c. 363, § 1.

At the request of the parties, the single justice of this court, by whom the bill was heard, reserved and reported the case without decision for the determination of the full court upon the pleadings and a statement of agreed facts, in which, or in the allegations of the bill admitted by the answer, appear the facts summarized above.

1. The ordinance was not valid if the initiative position and the subsequent enactment of the ordinance therein proposed were subject to the provisions of G.L. (Ter.Ed.) c. 44, § 33A, as amended, which is quoted above. See Clements v. Treasurer of Cambridge, 324 Mass. 73, 74-75, 84 N.E.2d 465. It was not 'to be operative for more than three months during the financial year in which it' was passed, which expired on January 7, 1957. See Allen v. City of Cambridge, 316 Mass. 351, 356-357, 55 N.E.2d 925. See also St.1911, c. 621, Part II, § 5. The proviso, that in any year other than an election year a salary increase may be adopted to become effective on January first of the next ensuing year, does not operate to sustain the ordinance, because 1956 was an election year. Assuming, as is asserted in the answer, that the annual budget was adopted on February 27, 1956 (see G.L. [Ter.Ed.] c. 44, § 32, as appearing in St.1941, c. 473, § 2, as amended by St.1953, c. 79), the ten per cent pay increase adopted on November 13, 1956, was also invalid because no supplemental appropriation was made to meet it, as required by § 33A. Compare Opinion of the Justices, 323 Mass. 764, 766-767, 79 N.E.2d 881.

2. It is plain that § 33A does apply to the pay increase ordinance. The provisions of the second sentence of § 33A are expressly to be effective 'Notwithstanding any contrary provision of any city charter.' A more explicit and imperative statement of the legislative intention could hardly have been made. The initiative provision in § 64 of Part II of the city charter is clearly a provision which is overridden by the second sentence of § 33A. It is of significance, also, that § 64 governing the initiative petition (see note 2 above) is to apply only 'provided said measure be one which it [the city council] has a legal right to pass.' The council under § 33A could not lawfully have passed on November 13, 1956, the ordinance of that date to become effective ten days later because it could not have been operative for more than three months in the then current fiscal year.

3. The plaintiffs argue in effect (1) that § 33A, as amended, prevented any operation of the initiative provisions of § 64 of the Lawrence city charter with respect to salary increases; (2) that the amendment of § 33A by St.1955, c. 358 (inserting the proviso in the second sentence of § 33A), was intended to relax somewhat the restrictions of the second sentence (as inserted by St.1947, c. 298, § 1) upon salary increases; and (3) that the Legislature by the 1955 amendment cannot have intended to do a futile thing or 'to pass a barren and ineffective statute.' See Allen v. City of Cambridge, 316 Mass. 351, 355-356, 55 N.E.2d 925, 927. The contention is without merit. The 1955 amendment was an act of state-wide application. It would have a very definite effect in permitting salary inceases in December of any nonelection year, to be effective the following year, in those cities which then had biennial elections, as was the case in certain cities in the Commonwealth. The circumstance that in Lawrence every year was an election year prior to 1957 (see St.1956, c. 82, providing for biennial elections in Lawrence after January 1, 1957) does not make the 1955 state-wide legislation futile or ineffective. Statute 1955, c. 358, was based on the report, 1955 Senate Doc. No. 675, of the special commission on budgetary procedure in cities (see Res.1954, c. 107; Res.1955, c. 31). It is clear from this report that there was no intention to relax the safeguards of § 33A against salary increases late in the financial year except to the strictly limited extent set forth in the 1955 amendment. ³

The Legislature has always attached importance to the statutory regulation, found in G.L. (Ter.Ed.) c. 44, of the financial affairs of cities and towns, in the interest of prudent fiscal management and continued solvency. See Flood v. Hodges, 231 Mass. 252, 256, 120 N.E. 689; Decatur v. Auditor of City of Peabody, 251 Mass. 82, 87, at pages 88-89, 146 N.E. 360, where, however, the court pointed out that certain statutory provisions relating to school appropriations were not subject to certain provisions of c. 44; Gilet v. City Clerk of Lowell, 306 Mass. 170, 173, 27 N.E.2d 748; Rock v. City of Pittsfield, 316 Mass. 348, 350, 55 N.E.2d 606. It is, accordingly unlikely that there was any intention ⁴ on the part of the Legislature that § 33A as amended...