Gorman v. City of Peabody

• Citation: 312 Mass. 560,45 N.E.2d 939
• Parties: GORMAN et al. v. CITY OF PEABODY.
• Decision Date: 29 December 1942
• Court: United States State Supreme Judicial Court of Massachusetts

312 Mass. 560

45 N.E.2d 939

GORMAN et al.

v.CITY OF PEABODY.

Supreme Judicial Court of Massachusetts, Essex.

Dec. 29, 1942.

Suit by Daniel Edward Gorman and others against City of Peabody to have determined amount of an alleged deficiency for support of public schools not included in annual budget appropriations and to require respondent and its officers to comply with statute pertaining to school appropriations. From a decree for petitioners, respondent appeals.

Reversed and decree entered dismissing petition.Appeal from Superior Court, Essex County; Morton, Judge.

Before FIELD, C. J., and DONAHUE, QUA, COX, and RONAN, JJ.

W. J. O'Keefe and A. K. Carey, both of Boston, for petitioner.

J. A. Liacos, City Sol., of Peabody, for respondent.

COX, Justice.

This is a petition brought under G.L.(Ter.Ed.) c. 71, § 34, inserted by St.1939, c. 294, to have determined the amount of an alleged deficiency for the support of the public schools, not included in the annual budget appropriations for 1942, and to require the respondent and its officers, whose action may be necessary, to carry out such order as may be made relative to any deficiency. The case was tried upon a statement of agreed facts and a further stipulation as to the amount of the alleged deficiency. A final decree was entered establishing the agreed amount of the alleged deficiency and, in effect, ordering compliance by the respondent and its officers with the provisions of said section 34. The respondent appealed.

On October 2, 1941, the school committee of the respondent voted to increase by $200 the salary of each public school teacher then employed, effective January 1, 1942. On October 18, 1941, a referendum petition, signed by the necessary number of registered voters of the respondent, as required by Spec.St.1916, c. 300, entitled ‘An Act to incorporate the City of Peabody,’ was duly presented to the school committee protesting against this vote. The school committee, ‘contrary to the provisions' of said c. 300, failed to annul, repeal or rescind the vote and failed to request the city council to have ‘said vote or measure’ submitted to a vote of the qualified voters of the city, ‘as required by the provisions of’ said c. 300. On November 6, 1941, at a regular meeting of the school committee, said vote of October 2, 1941, was ‘reconsidered and re-affirmed.’ On November 19, 1941, the school committee presented to the mayor its school budget for 1942, which included the amount required to pay the salary increases that had been voted, but the mayor refused to include this amount in the budget and also refused to include any other sum to be used for the payment of the salary increases as voted. The budget, as submitted without these provisions, was approved by the city council.

The city charter of Peabody is found in Spec.St.1916, c. 300, § 48, of which provides, in substance, that if within twenty days after the final passage of ‘any measure’ by the city council or by the school committee a petition signed by the requisite number of registered voters is presented to the city council or to the school committee, as the case may be, protesting against ‘such measure or any part hereof, the same shall thereupon and thereby be suspended from taking effect,’ and the city council or school committee, as the case may be, shall immediately reconsider ‘such measure or part thereof,’ and if ‘such measure or part thereof’ is not entirely annulled, repealed or rescinded, the city council shall submit the same, by the method provided the charter, to a vote of the qualified voters of the city, and ‘such measure or part thereof shall forthwith become null and void unless a majority of the qualified voters voting on the same at such election shall vote in favor thereof.’

One question for determination is whether the vote of the school committee increasing the salaries of all the public school teachers is a ‘measure’ within the meaning of that word as appearing in said section 48 of the charter. In construing the word ‘measure’ in the phrase, ‘When the municipal council shall pass any measure,’ as appearing in St.1911, c. 645, § 28, it was said in Thomas v. Municipal Council of Lowell, 227 Mass. 116, at page 120, 116 N.E. 497, at page 498, that it did not include an order of removal of city officers. The case of Dooling v. City Council of Fitchburg, 242 Mass. 599, 136 N.E. 616, was a petition for a writ of mandamus to compel the respondent city council to comply with the municipal referendum law as to certain orders passed by it. At that time the charter of the city of Fitchburg was Plan B of what is now G.L.(Ter.Ed.) c. 43, § 42, of which provides that there shall be a referendum respecting ‘any measure’ finally passed by the city council of cities that have adopted Plan B. ‘Measure’ is defined by section 37 of said c. 43 to be an ‘ordinance, resolution, order or vote.’ It was said, at page 601 of 242 Mass., at page 617 of 136 N.E., that these words of definition, although of broad signification, are necessarily limited to subjects vested by law in the city council. ‘The sphere of action of the city council of a city with plan B charter is rigidly confined to legislation with possible exceptions not here material, and cannot encroach upon executive or administrative duties, which are to be performed by the mayor or under his direction or by other municipal boards, committees or officers.’ It was held that the orders of the city council of which the referendum was sought were clearly executive, and not legislative, in their nature. What the city council did was to adopt orders confirming the action of one of its committees in advertising for and accepting bids for the erection of a school house, awarding contracts in accordance with the vote of the committee, and authorizing and directing the mayor to execute with each successful bidder a described and identified contract. It was held that the passage of these orders was not within the sphere of action vested in the city council and that, not being ‘measures' within its jurisdiction, the referendum provisions were not applicable to them. 242 Mass. at page 602, 136 N.E. 616.

In Openshaw v. Fall River, 287 Mass. 426, 192 N.E. 46, the plaintiff, a police officer of the defendant, was paid twenty per cent less salary than he had received prior to a given date, and he brought suit to recover the amount of the reduction in his salary. The city council adopted a budget based on a reduction of twenty per cent for all officers and employees of the city, and other necessary steps were taken to reduce the salaries by twenty per cent. It was said that the action taken was legislative in nature, and not executive or administrative (287 Mass. at page 432, 192 N.E. at page 49) citing Alger v. Justice of District Court of Brockton, 283 Mass. 596, 186 N.E. 838, where it was held, among other things, that the provisions of the charter of the city of Brockton giving to the mayor and aldermen power to appoint policemen and firemen, their compensation to be fixed by concurrent vote of the city council, ‘clearly convey legislative power and contemplate legislative action.’ 283 Mass. at page 598, 186 N.E. at page 839. It was pointed out in Selectmen of Milton v. Justice of District Court of East Norfolk, 286 Mass. 1, 5, 189 N.E. 607, that the exercise of executive functions as to a police officer or fireman with respect to his removal, suspension, transferance from office, or lowering in rank or compensation, or abolition of office, taken after full hearing, is in the nature of a judicial investigation, but that such action differs in nature from a sweeping determination of municipal policy as to the scale of salaries to be paid to all municipal employees or to all employees of a considerable department of the municipal government, which is not a judicial function. See Rappaport v. Lawrence, 308 Mass. 545, 548, 33 N.E.2d 290.

In Fortin v. Chicopee, 301 Mass. 447, 448, 17 N.E.2d 441, 442, it was said: ‘An executive reduction in salary of a single officer or employee in the classified civil service, or of selected individuals in that service, requires just cause, reasons specifically stated in writing and a hearing * * *. Such an executive reduction in salary must be distinguished from legislative action by a municipality, constituting ‘a sweeping determination of municipal policy as to the scale of salaries to be paid to all municipal employees or to all employees of a considerable department of the municipal government.’' It is true that the opinion in this case goes on to say that the reduction (in wages or salaries) could not be valid as an executive reduction for want of reasons given in writing and that it must be supported, if at all, as legislative action, affecting the members of the department uniformly. 301 Mass. at page 449, 17 N.E.2d at page 442. See Barnard v. Lynn, 295 Mass. 144, 3 N.E.2d 264;Whalen v. First District Court of Eastern Middlesex, 295 Mass. 305, 308, 3 N.E.2d 1005;Gilet v. City Clerk of Lowell, 306 Mass. 170, 175, 27 N.E.2d 748.

It may at times be difficult to determine just where the executive function relative to the matter of salaries ends and the legislative function begins. But in the light of the cases to which reference has been made and having in mind the language of the city charter, we are of opinion that the vote in question of the school committee was passed in the exercise of its legislative function. It was a sweeping determination that every public school teacher was entitled to an increase in salary. Apart from economic conditions, in so far as they relate to teachers, it does not appear that the increase had any reference to the individual qualifications, length of service, or other matters which quite generally enter into the consideration of the question whether a salary increase is warranted. If we assume that the increase was based upon the economic condition of the...