Openshaw v. City of Fall River

• Decision Date: 13 September 1934
• Citation: 192 N.E. 46,287 Mass. 426
• Parties: OPENSHAW v. CITY OF FALL RIVER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

287 Mass. 426

192 N.E. 46

OPENSHAW

v.CITY OF FALL RIVER.

Supreme Judicial Court of Massachusetts, Bristol.

Sept. 13, 1934.

Exceptions from Superior Court, Bristol County; Hanify Judge.

Action of contract by Frederick P. Openshaw against the City of Fall River. Finding for defendant, and plaintiff brings exceptions.

Exceptions overruled.G. A. McLaughlin and W. H. McLaughlin, both of Boston, for plaintiff.

E. T. Murphy, City Sol., of Fall River, for defendant.

DONAHUE, Justice.

The plaintiff, a police officer of the defendant city, beginning April 7, 1931, was paid twenty per cent less salary than he had received prior to that time. He here brings suit to recover the amount of the reduction in salary between that date and the date of his writ, October 5, 1931. The case was tried on an agreed statement of facts before a judge of the superior court sitting without jury, who filed findings of fact and found for the defendant. The plaintiff excepted to certain inferences of fact made by the judge and to certain rulings made and to the refusal by the judge to make rulings requested by the plaintiff.

The city of Fall River in 1928 adopted the plan of government designated as plan D in G. L. c. 43, § 1, as amended by St. 1922, c. 237, and there described as ‘a city government and legislative body composed of a mayor and four councillors, and an administrative officer, called the city manager.’ It is provided in section 81 of that chapter that under plan D ‘the government of the city and the general management and control of all its affairs shall be vested in a mayor and a city council. * * *’ Two special acts of the Legislature applicable only to the city of Fall River to some extent limit and modify the application of section 81 so far as that city is concerned. The first of these, St. 1894, c. 351, established a board of police of the city of Fall River consisting of three members appointed by the Governor. It vested in the board the power to appoint, organize and control the police of that city. This was a grant of power by the Legislature to the board of police allotting to it powers generally vested in the elected government of a municipality. This statute has continued in full force and effect. Notwithstanding the adoption of the form of government called plan D the right and power to control the police of Fall River remained in the board. Sullivan v. Lawson, 267 Mass. 438, 441, 166 N. E. 850. Among other things the statute of 1894 provides that the pay of the police shall not be increased or decreased ‘except by the concurrent action of said city and said board.’ Section 5.

By an act passed in 1931 the Legislature established the Fall River board of finance consisting of three members appointed by the Governor. St. 1931, c. 44. To it was given control of the financial affairs of the city; ‘no appropriations shall be made, and no debt incurred, except with the approval or upon the recommendation or requisition of the board. * * * No department of said city * * * shall expend any money or incur any liability except with the written approval of the board. * * *’ Section 8. The purpose of the act and the powers of the board of finance are discussed in Broadhurst v. Fall River, 278 Mass. 167, 179 N. E. 586, and Paquette v. Fall River, 278 Mass. 172, 179 N. E. 588.

The board of finance on April 1, 1931, sent to the city council a suggested budget for the city for the current fiscal year which would ‘meet its approval,’ with a letter which stated that the budget therewith submitted provided a reduction of twenty per cent of all city officials' and employees' salaries for the balance of that year, and that the board of finance would not approve the payment of any salary which was not less by twenty per cent than the salary hitherto received. A communication of similar tenor was also sent to the board of police at some time prior to April 2. On April 2 the city council met and voted to adopt the budget as submitted by the board of finance with the reductions of salary there requested. On the same date the board of police met and voted that the pay of all members of the police department affected by the order of the board of finance be reduced twenty per cent for the rest of the year and that a copy of the vote be transmitted to the city council for concurrent action in accordance with St. 1894, c. 351. It was also voted by the board of police that waivers of rights with respect to the reduction in pay be sent to each member of the department and that a hearing be granted to such members as did not sign a waiver. On the following day the plaintiff was given written notice by the board that it had found it necessary to reduce his pay twenty per cent because of lack of funds due to the reduction of the appropriation in the budget adopted by the city council and because of orders and directions of the board of finance. The letter also stated that he would be given a hearing on the contemplated reduction at a stated time and place. On April 6 the plaintiff in writing notified the board that he waived his rights with respect to the reduction of compensation. On April 7 the board of police passed a vote that: ‘The pay of the police be at a reduction of 20 per centum effective as of April 6, 1931.’ On August 20 the plaintiff wrote to the board of police stating that he withdrew his consent to the reduction in pay and giving as a reason that no action had been taken upon his consent by the board of police concurrently with the city council, and requesting a return of his written consent and waiver for the reason given.

The board of finance under the power granted to it by the Legislature to withhold its approval of appropriations could limit the amount available to pay the wages or salaries of employees in every department of the city. It gave notice to the city council, and to the board of police as well, of its intention to exercise that power unless its views were adopted, to the end that the expense of conducting the government of the city might be lessened. By the statute creating it the board of finance was not itself empowered to make reductions in the pay of city officials and employees. The power to reduce the pay of police officers remained vested in the city...