Hurley v. City of Lynn
| Decision Date | 27 May 1941 |
| Citation | 34 N.E.2d 520,309 Mass. 138 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | THOMAS F. HURLEY & others v. CITY OF LYNN (and two companion case. [1]). |
March 3, 1941.
Present: FIELD, C.
J., DONAHUE, QUA DOLAN, & COX, JJ.
Municipal Corporations, Fire department. Equity Jurisdiction, Petition by ten taxable inhabitants. Mandamus. Certiorari. A petition by ten taxable inhabitants of a city under G. L. (Ter. Ed.) c.
40, Section 53, was an adequate remedy to enjoin the expenditure of the city's money or its incurring of obligations pursuant to an order by the city council regulating the hours of duty of the members of the fire department in violation of c. 48, Section 59; and a mandamus proceeding to prevent the carrying out of the order and a certiorari proceeding to quash the proceedings of the city council must be dismissed.
Section 59 of G. L (Ter. Ed.) c. 48 requires that the two platoons of the permanent uniformed fire fighting force of a municipality alternate on and off duty as units; and an arrangement whereby the alternating was by individuals, with shifting of members from time to time from one platoon to the other and from one station or company to another, was in violation of the statute.
PETITION under G L. (Ter. Ed.) c. 40, Section 53; also petitions for writs of mandamus and certiorari, all filed in the Superior Court on March 22, 1940.
The cases were heard and reported by Morton, J.
J. C. Reilly, (N.
J. Murphy with him,) for the respondents.
E. S. Underwood, for the petitioners.
The city of Lynn at some time accepted Section 59 of c. 48 of the General Laws, and thereafter the uniformed fire fighting force of said city was divided into two bodies or platoons. There was evidence that these platoons were of equal numbers, one of which was on duty all the time, and that they alternated as units, except for the officers who alternated a day ahead of the men. The arrangement under which the men worked was called the "84-hour plan." In February, 1940, the city council adopted an order, the so called "72 Hour Plan," regulating the number and schedule of hours of duty of the members of the fire department, and, in compliance with this order, the city proposed to employ the members of the department and to pay them the same wages as they had theretofore received.
For the purpose of testing the legality of the proceedings, ten taxable inhabitants of the city of Lynn brought a petition in the Superior Court under the provisions of G. L. (Ter. Ed.) c 40, Section 53, in which they ask that the city, its officers and agents, be enjoined from proceeding under said order of the city council, and from expending any money or incurring any obligation in the pursuance or in the performance thereof. At the same time, petitions for writs of mandamus and certiorari were filed by which it was sought to prevent the order from becoming effective or to quash the proceedings.
The cases were heard by a judge of the Superior Court who made findings of fact and ordered a final decree entered enjoining the city, its officers and agents from proceeding under said order, and from spending any money or incurring any obligation in pursuance or in performance thereof or in operating its fire department as provided for by said order. He reported the cases, with the evidence, to this court (G. L. [Ter. Ed.] c. 211, Section 6; c. 214, Section 31), stating that if either the petition for a writ of mandamus or that for certiorari is maintainable as matter of law, he would grant it in his discretion and order the appropriate writ to issue; that if the order for final decree was warranted, it should be entered; otherwise, such final decree was to be entered as justice and equity require. He further stated that the only issue raised and tried by the parties was whether the "72-hour plan," so called, adopted by the city council and put into effect by the fire chief was in violation of Section 59 of said c. 48. This is the only issue that has been argued.
1. The parties have evinced little interest in the proper method of procedure and have addressed themselves principally to the issue tried. Prior to the passage of St. 1919, c. 132, cities and towns had broad powers relative to the establishment of fire departments. See R. L. c. 32, Sections 26-70, inclusive. By St. 1909, c. 514, Section 44 (see now G. L. [Ter. Ed.] c. 48, Section 56) cities and towns were authorized to establish the hours of labor of the members of the fire department. But St. 1919, c. 132, provided for important changes in cities and towns that accepted its provisions, as will more fully appear hereinafter. For the present, it is enough to say that it provided that the permanent members of the uniformed fire-fighting force "shall" be divided into two bodies or platoons, a day force and a night force, and fixed the hours of duty of both forces. Under the "84-hour plan," so called, the permanent membership consisting of a maximum of two hundred fifteen men, was divided into two platoons of equal numbers, but under the 72-hour plan the number of men in a platoon on service at one time was reduced, in effect, to a maximum number of seventy-six, and under the latter plan, with the exception of the officers, the men were to alternate, not as units, but as individuals, and the judge found that this plan amounted to the creation of a third platoon consisting of the remainder of the force. The respondents concede that under the 72-hour plan a platoon is not on or off duty as a unit, but that its members are off duty one at a time. Admittedly the question presented is whether the 72-hour plan is in violation of the provisions of said Section 59 of c. 48.
G. L. (Ter.
Ed.) c. 40, Section 53, provides that if a town or its officers or agents are about to raise or expend money or incur obligations purporting to bind the town for any purpose or object "or in any manner other than that for and in which such town has the legal and constitutional right and power to raise or expend money or incur obligations," the Supreme Judicial or Superior Court may, upon the petition of not less than ten taxable inhabitants of the town, determine the same in equity, and may, before the final determination of the cause, restrain the unlawful exercise or abuse of such corporate power. We are of opinion that the remedy provided by said Section 53 is applicable to the case at bar in that the expenditure of money for the maintenance of the fire department, in violation of said Section 59 of c. 48, is an unlawful exercise of the city's corporate power, that this remedy is adequate and effective, and that the petitions for the writs of mandamus and certiorari do not lie. Draper v. Mayor of Fall River, 185 Mass. 142 . Finlay v. Boston, 196 Mass. 267. Welch v. Emerson, 206 Mass. 129 . Flood v. Hodges, 231 Mass. 252 . Adams v. Selectmen of Northbridge, 253 Mass. 408 . Jones v. Natick, 267 Mass. 567 . MacRae v. Selectmen of Concord, 296 Mass. 394 , 397. Department of Public Utilities v. Trustees of New York, New Haven & Hartford Railroad, 304 Mass. 664. Amory v. Assessors of Boston, 306 Mass. 354 , 357, and cases cited. Tranfaglia v. Building Commissioner of Winchester, 306 Mass. 495 . Dube v. Mayor of Fall River, 308 Mass. 12 , 13-14, and cases cited.
2. We are of opinion that the order adopting the 72-hour plan is in violation of said Section 59 of c. 48. St. 1919, c. 132 approved April 25, 1919, provided in Section 1 that the permanent members of the uniformed fire-fighting force in every city and town that accepted the provisions of the act "shall" be divided by the fire commissioner or other officer or officers having charge of the fire-fighting force into two bodies or platoons, which shall be designated as a day force and a night force, "and the day force and night force shall alternate on tours of duty every third day." Section 2 provided that the hours of duty of the day force shall be "from eight o'clock ante meridian to six o'clock post meridian, and the hours of duty of the night force shall be from six o'clock post meridian to eight o'clock ante meridian: provided, that on every third day, for the purpose of alternating the day force with the night force and vice versa, the number of hours of duty herein stated may be exceeded, but one force shall be at liberty at all times except as is otherwise provided in section three of this act." Section 3 provided that in case of a conflagration, all of the members of the fire-fighting force could be summoned and kept on duty while the conflagration continued. It was also provided that the act should not repeal or affect any act, ordinance or by-law relative to salary, pensions, annual vacations, sick or disability leave of absence of the members of the force, and that the provisions of St. 1909, c. 514, Section 44 (see now G. L. [Ter. Ed.] c. 48, Section 56), authorizing cities and towns to establish the hours of labor of firemen, St. 1912, c. 546, and St. 1915, c. 97, both of which provided one day off in five for firemen, should not thereafter apply to the permanent members of the uniformed fire-fighting force in any city or town that accepted the provisions of the act. All ordinances or by-laws, or parts...
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