Oleksak v. City of Westfield

• Decision Date: 09 February 1961
• Citation: 342 Mass. 50,172 N.E.2d 85
• Parties: Joseph P. OLEKSAK et al. v. CITY OF WESTFIELD et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 85

172 N.E.2d 85

342 Mass. 50

Joseph P. OLEKSAK et al. v. CITY OF WESTFIELD et al.

Supreme Judicial Court of Massachusetts, Hampden.

Argued Nov. 9, 1960.

Decided Feb. 9, 1961.

Joseph E. Kerigan, Springfield, for plaintiffs.

Edward M. Lee, City Sol., Westfield, for defendants.

Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE and CUTTER, JJ.

WILKINS, Chief Justice.

This suit in equity for a declaratory decree is reported without decision by a judge of the Superior Court after agreement as to all the material facts. G.L.(Ter.Ed.) c. 214, § 31. The plaintiffs, members of the police department of the defendant city, bring the bill for the benefit of all members of the department. Other defendants are the chief of policy, the city auditor, and the city treasurer. The bill alleges that the management and control of the department are vested in a police commission of three members appointed by the mayor the composition of which has been changed and is unknown to the plaintiffs. ¹ A demurrer and a plea in abatement were waived at the arguments before us.

The underlying question on the merits is whether the city has properly accepted St.1959, c. 228, which inserts § 108E in G.L. c. 41:

'Notwithstanding the provisions of any general or special law to the contrary, the minimum annual compensation of each regular police officer of the police department of any city or town shall be not less than the following: * * *

'This section shall become effective when accepted in a city having a plan E charter by the affirmative vote of a majority of all the members of the city council, and, in the case of other cities by vote of the city council, subject to the provisions of the charter, and in a town by majority vote at an annual town meeting.'

Westfield is incorporated under St. 1920, c. 294, as amended, and does not have a Plan E charter.

The statute is lacking in desirable clarity. The opening phrase, 'Notwithstanding the provisions of any general or special law to the contrary,' we shall treat as referring only to the compensation provisions, and not as modifying the last paragraph relating to acceptance by the city council. We do so without reliance upon G.L. c. 41, § 108D, inserted by St. 1960, c. 260, ² relating to minimum annual compensation for fire fighters.

We are now faced with another ambiguity presented by the phrase 'subject to the provisions of the charter.' See Brucato v. City of Lawrence, 338 Mass. 612, 617, 156 N.E.2d 676, 680. Trouble arises from the location of the phrase in the sentence and from its being set off by commas. The plaintiffs contend that all the phrase does is to draw a contrast between acceptance by a majority of the full membership of the council under a Plan E charter and acceptance by a vote of the council by a majority of a quorum under other charters. The defendants, on the other hand, contend that the phrase imports certain provisions of the charter of Westfield with which there should have been compliance. For reasons which will later appear, we do not have to resolve this doubt.

The city council is composed of eleven members. On December 3, 1959, at a meeting at which ten were present, it was unanimously 'Voted: That Section 108E of Chapter 41 of the General Laws be and hereby is Accepted.' No publication of this vote was ever made, and there was no second reading of the vote. On December 28, 1959, at a meeting at which ten were present, by a vote of seven to three, it was 'Voted: That the sum of $240.63 be Transferred from Paid Holidays in the Police Department budget to item Patrolmen's Salaries, $217.71 and item Sergeants' Salaries, $22.92 to make effective the provisions of Section 108E of Chapter 41 of the General Laws as December 29, 1959.' Both votes were approved by the mayor.

The defendants contend that the vote of December 3 violated sections 28, 29, 30, and 31 of the city charter. ³ These all relate to ordinances. For example, § 28 prohibits the passage of an ordinance on the day it is introduced unless there is an emergency preamble and a two-thirds affirmative vote; and § 31 calls for newspaper publication of ordinances. Further elaboration is not needed, because we are of opinion that the acceptance of the statute by the council under the power conferred by the Legislature was not an ordinance. See McQuillin, Municipal Corporations (3d ed.) § 15.01. It was a procedure, originating out of deference to the policy of 'home rule,' whereby the municipality was accorded an option to make a part of our statute law, which is of general application in the Commonwealth, effective within the city area. See G.L. c. 4, § 4; § 4A, inserted by St. 1952, c. 223. A return of the result of such action of the city council must be made to the Secretary of State. G.L. c. 4, § 5. On the other hand, an ordinance is a legislative enactment of a city effective only within its own boundaries, and no return to any State authority is required after its enactment.

An act once accepted is beyond the power of the council to rescind, lacking such an express statutory authorization. Brucato v. City of Lawrence, 338 Mass. 612, 616, 156 N.E.2d 676. An ordinance, on the other hand, can be repealed by a later ordinance. McQuillin, Municipal Corporations (3d ed.) § 21.10. See § 29, Westfield charter, St. 1920, c. 294, § 20. See, as to uniform charters, c. 43, § 21; and definition of 'ordinance' in § 1.

We are of opinion that § 33A of the municipal finance act, G.L. c. 44, ⁴ does not apply. It relates in large part to ordinances. The portion which purports to prohibit an 'increase in rate * * * by * * * vote' under certain prescribed conditions cannot have any effect in the present case because § 108E establishes the minimum...