Mulrain v. Board of Selectmen of Leicester

• Decision Date: 03 March 1982
• Citation: 430 N.E.2d 831,13 Mass.App.Ct. 48
• Parties: Neil T. MULRAIN v. BOARD OF SELECTMEN OF LEICESTER.
• Court: Appeals Court of Massachusetts

Page 831

430 N.E.2d 831

13 Mass.App.Ct. 48

Neil T. MULRAIN v. BOARD OF SELECTMEN OF LEICESTER.

Appeals Court of Massachusetts, Worcester.

Argued Nov. 12, 1981.

Decided Jan. 14, 1982.

Further Appellate Review Denied March 3, 1982.

David A. Wojcik, Worcester, for plaintiff.

Andrew C. J. Meagher, Town Counsel, Worcester, for defendant.

Before ARMSTRONG, CUTTER and KASS, JJ.

CUTTER, Justice.

On December 13, 1977, Mulrain was appointed a full time police officer in Leicester. In 1960, the town had adopted a by-law providing in part that "(o) fficials or employees paid for services to the (t)own, other than competitive contract, emergency or necessary skilled professions, shall be residents of the (t)own and shall so reside." On March 3, 1969, the town accepted the provisions of G.L. c. 31, § 48, as amended by St.1967, c. 246, § 1, placing its police department under the Civil Service law. Since the recodification of c. 31, by St.1978, c. 393, many of the provisions of old §§ 48 and 48A, as amended, now appear in new c. 31, §§ 52 to 56 and 58.

Prior to July 1, 1980, Mulrain lived in Leicester. Since then he has lived in North Brookfield, approximately six miles from the nearest border of Leicester. On July 9, 1980, the selectmen of Leicester notified Mulrain that, if he did not within ninety days reestablish residence within the town, he would be removed as a police officer at the end of the period. After a hearing on October 7, 1980, at which Mulrain was present with counsel, Mulrain was removed, effective October 8, 1980. Mulrain seeks declaratory and other relief with respect to this removal. A district court judge sitting by statutory authority in the Superior Court made amended findings on the basis of a stipulation of essentially the facts already stated and ruled that the 1960 by-law was valid, and that the case was governed by G.L. c. 41, § 99A, as appearing in St.1978, c. 373, § 1. Mulrain has appealed from the judgment entered in accordance with the judge's ruling.

1. Section 99A, as amended by § 1 of the 1978 statute, reads in part, "Any member of the regular police ... department of a city or town appointed subsequent to ... (August 1, 1978) shall reside within fifteen miles of the limits of said city or town. Said distance shall be measured from the closest border limits of said city or town in which said member is employed to the closest border limits of the city or town in which said member lives; provided, however, if any said city or town by local ordinance or by-law to which the provisions of" G.L. c. 150E, § 7, par. (d), "shall apply, or by collective bargaining agreement ¹ shall require the members of a regular police ... department appointed on or after ... (August 1, 1978) to be residents of such ... town, the provision of such local ordinance, by-law or collective bargaining agreement shall supersede the provision of this section and provided further such ... by-law or collective bargaining agreement shall apply only to those members of a regular police ... department appointed subsequent to the adoption of such local ... by-law or collective bargaining agreement" (emphasis supplied). Statute 1978, c. 373, § 2, provided that § 1 (just quoted) shall not apply to police officers appointed prior to August 1, 1978, "who reside outside the ... town" but that § 99A, as stated in § 1, "shall apply to any such ... (officer) who changes his domicile after" August 1, 1978. Appropriately, this provision might have been included in the General Laws as part of § 99A or as a separate section.

The provisions of G.L. c. 41, § 99A, as amended by St.1978, c. 373, just quoted, are inconsistent in various respects with the provisions of G.L. c. 31, § 58, as amended by St.1978, c. 393, § 11 (shortly after the enactment of St.1978, c. 373). ² Section 58, so far as quoted in the margin, contains essentially the language of former c. 31, § 48A, as amended by St. 1974, c. 835, § 135. This statute appears to have been intended to make it possible for newly appointed police officers in cities and in towns which had accepted civil service for their police forces to settle in any place inside the Commonwealth within ten miles of the perimeter of the town in which they were to serve.

The two 1978 amendatory statutes were approved, c. 373, on July 11, 1978, and c. 393, on July 12, 1978. They must be interpreted in harmony, if that be possible. See Pilch v. Ware, 8 Mass.App. 779, ---, Mass.App.Ct.Adv.Sh. (1979) 2399, 2401, 397 N.E.2d 1123. The two most recent cases dealing with residence requirements for police officers arose, and were decided, before the enactment of the 1978 amendments of G.L. c. 31 and of c. 41, § 99A. They are not determinative of the present issue. See Doris v. Police Commr. of Boston, 374 Mass. 443, 446, 373 N.E.2d 944 (1978); Burke v. Chief of Police of Newton, 374 Mass. 450, 451, 373 N.E.2d 949 (1978). At most, these decisions recognize that c. 41, § 99A, and former c. 31, § 48A, the predecessor of present § 58, each affect the problem of police officers' residences and are statutes of general application (to more than one city or town) within the reserved powers of the Legislature under the Home Rule Amendment, art. 89 of the Amendments to the Constitution of the Commonwealth. See Bloom v. Worcester, 363 Mass. 136, 144, 155-160, 293 N.E.2d 268 (1973); Arlington v. Board of Conciliation and Arbitration, 370 Mass. 769, 773-774, 352 N.E.2d 914 (1976).

Chapter 41, § 99A, as amended, purports to apply to city ordinances as well as town by-laws, and police officers of cities (except certain police chiefs) are subject to civil service. See G.L. c. 31, §§ 48, 51, 52, as inserted by St.1978, c. 393, § 11. Section 99A, as amended, makes no reference to the circumstance that a particular officer is subject to civil service as having bearing upon the impact of the section. Certainly § 99A deals with the subject of residence requirements of ordinances and by-laws specifically whereas c. 31, § 58, does not. On the other hand, § 58 provides (see second emphasized passage in note 2, supra) that, "notwithstanding the provisions of any general or special law to the contrary," a person appointed a town police officer shall establish his residence within ten miles of the perimeter of that town.

The language just quoted from new c. 31, § 58, suggests that new § 58 controls the more explicit provisions of c. 41, § 99A. Section 58, however, in terms provides only that a newly appointed officer has nine months in which to move to within ten miles of the community where he is employed. The section does not discuss the effect of a town by-law requiring residence within the town or of a subsequent removal of domicil from the town, as do the provisions of amended § 99A and of St.1978, c. 373, § 2.

During the same session of the Legislature, both new c. 31, § 58 (St.1978, c. 393), and new c. 41, § 99A (St.1978, c. 373), were approved within a day of each other. Appropriately, the provisions of the two statutes should have been made wholly consistent. That this was not done may have been due to inadvertence, or it may have been that § 99A was considered the appropriate place to provide for the details of residence requirements for police officers rather than in a general recodification of the statutes governing civil service. The situation, in various respects, is somewhat analogous to that considered in Marshal House, Inc. v. Rent Control Bd. of Brookline, 358 Mass. 686, 698, 266 N.E.2d 876 (1971), where two statutes dealing with the same subject matter were passed at the same legislative session, and it was held that the statute dealing with that subject matter more specifically (there because of the needs of a particular town) was to be regarded as controlling. We hold that the more specific provisions of new § 99A control the more general provisions of new c. 31, § 58, concerning the effect of town by-laws.

2. We do not regard the Leicester by-law as void for vagueness. A reasonable interpretation of the inartistic and ungrammatical exception to the by-law, "other than competitive, contract, emergency or necessary skilled professions," is that it refers to all persons possibly regarded as employees who are paid by the town (a) under contracts let by competition, or (b) who are retained (probably temporarily) in emergencies, or (c) are members of callings, usually and in common parlance, regarded as professions, e.g. law, medicine, dentistry, accounting, engineering, sciences, and perhaps other occupations ordinarily requiring post-college study. We think...