Gilliat v. City of Quincy

• Decision Date: 18 October 1935
• Citation: 292 Mass. 222,197 N.E. 877
• Parties: GILLIAT et al. v. CITY OF QUINCY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

292 Mass. 222

197 N.E. 877

GILLIAT et al. v. CITY OF QUINCY et al.

Supreme Judicial Court of Massachusetts, Norfolk.

October 18, 1935

Suit by Charles L. Gilliat and others against City of Quincy and others. From a decree dismissing the bill, complainants appeal.

Reversed, with directions.

Appeal from Superior Court, Norfolk County; Donnelly, Judge.

E. B Austin, of Quincy, for appellants.

J. D Smith, City Sol., and R. P. Gilman, both of Quincy, for appellees.

RUGG, Chief Justice.

This is a petition by ten or more taxpayers under G. L. (Ter. Ed.) c. 40, § 53, seeking to restrain the expenditure of money to carry out orders and votes of the city council purporting to change the wards of the city of Quincy (hereafter called the city) from six to eight and to increase the number of precincts. The case was submitted upon an agreed statement of facts. Thus it appears that the city was governed by St 1888, c. 347, and acts in amendment thereto, as its first city charter until, in November, 1916, it adopted a new city charter, fully operative on the first Monday of the following January, known as Plan A, pursuant to St. 1915, c. 267, pts 1 and 2. Those provisions are now embodied in G. L. (Ter. Ed.) c. 43, §§ 1 to 55, to which reference will be made: in sections 1 to 45 are general provisions applying to all plans of city charters prescribed in the chapter; in sections 46 to 55 are the distinctive features known as Plan A. By St. 1888, c. 347, § 3, it was enacted that the territory of the city should first be divided into six wards, ‘ but said number, upon any subsequent division of said city into new wards, may be increased by an affirmative vote of a majority of the members of the city council passed previous to and in the year of such new division.’ By the new charter (G. L. [Ter. Ed.] c. 43, § 6, St. 1915, c. 267, Part 1, § 6), ‘ The territory of a city adopting any of the plans of government provided for in this chapter shall continue to be divided into the same number of wards existing at the time of such adoption, which shall retain their boundaries until changed in accordance with general law.’ In G. L. (Ter. Ed.) c. 54, relating to ‘ Elections,’ are these provisions: Section 1.‘ In nineteen hundred and twenty-four, and every tenth year thereafter, in December, a city, by vote of its city council, may make a new division of its territory into such number of wards as may be fixed by law’ ; directions for the division of wards into voting precincts are contained in section 2; and by section 3, ‘ On or before the first Monday of July in the year following a redivision of a city into wards, the aldermen shall divide such city into voting precincts, conformably to the preceding section.’

The main question raised on this petition is whether the city council of the city was empowered in December, 1934, to increase the number of wards from six to eight. The answer to that question depends on the inquiry whether section 3 of St. 1888, c. 347, already quoted, remained in force after the adoption of the new charter and the organization of the city government in accordance with its terms. The statute describes the effect of the adoption of the new charter in these words: ‘ this chapter, so far as applicable to the form of government under the plan adopted by the city, shall supersede the provisions of its charter and of the general and special laws relating thereto and inconsistent herewith.’ G. L. (Ter. Ed.) c. 43, § 11, St. 1915, c. 267, pt. 1, § 11.

The adoption by the voters of the city of the Plan A charter was the equivalent of the enactment of a new charter by the General Court, although under a general instead of a special law. The new charter is complete in itself; it is intended to be exclusive in its field. All earlier statutes, so far as inconsistent with its terms, are deemed to be repealed. All that has been theretofore enacted is revoked except as preserved in the new charter. The enactment of a new charter for a city is in substance the abolition of the old charter. Cunningham v. Mayor of Cambridge, 222 Mass. 574, 577, 111 N.E. 409, Ann.Cas. 1917C, 1100; Dooling v. City Council of Fitchburg, 242 Mass. 599, 136 N.E. 616; Safford v. Lowell, 255 Mass. 220, 224, 151 N.E. 111; King v. Mayor of Quincy, 270 Mass. 185, 187, 188, 169 N.E. 894.

The number of wards of the city is fixed by section 6 of the new charter, already quoted. That number shall remain the same as at the time of the adoption of the new charter. The number of wards thus established was six. The boundaries of those wards also must be retained until changed in conformity to general law. The boundaries...