Rappaport v. City of Lawrence

• Decision Date: 03 April 1941
• Citation: 308 Mass. 545,33 N.E.2d 290
• Parties: CHARLES RAPPAPORT v. CITY OF LAWRENCE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

308 Mass. 545

33 N.E.2d 290

CHARLES RAPPAPORT v. CITY OF LAWRENCE.

Supreme Judicial Court of Massachusetts, Essex.

April 3, 1941

March 4, 1941.

Present: FIELD, C.

J., DONAHUE, QUA DOLAN, & COX, JJ.

Municipal Corporations, Officers and agents, Municipal finance. Civil Service. Contract, Of employment.

The original appointment of a civil service employee of a city, even if defective, was ratified by the city's paying his full salary for several years, and such alleged defect did not affect his right to recover his salary during later years.

A civil service employee of a city, who had not been suspended nor lowered in compensation by any lawful action and had performed his duties throughout a certain year and had not acquiesced in a failure of the city to pay his compensation for the last part thereof, was entitled to recover the unpaid compensation from the city in an action of contract where there had been a sufficient appropriation to pay his compensation for the whole year but a part of the appropriation had been unlawfully diverted to other purposes.

CONTRACT. Writ in the District Court of Lawrence dated January 3, 1940. Upon removal to the Superior Court, the action was heard by Buttrick, J.

The case was submitted on briefs. J. P. Kane, City Solicitor, for the defendant.

M. J. Batal &amp M.

Rappaport, for the plaintiff.

DOLAN, J. This is an action of contract to recover wages, alleged to be due the plaintiff for services rendered by him to the defendant. The judge found for the plaintiff, and the case comes before us on the defendant's exceptions to the denial of its requests for rulings.

The evidence tended to show the following facts. The plaintiff is a civil service employee of the defendant with a rating as "Supervisor Instructor -- Caretaker" of swimming pools. Prior to September 5, 1935, he had been a "permanent recurrent" employee of the defendant under the designation of "Instructor -- Caretaker." On the date just mentioned he was promoted to be "Supervisor Instructor -- Caretaker" of swimming pools by the alderman-director of "Public Property and Parks" at $38.50 a week less ten per cent for 1935, "To be employed year round." He was promoted to take the place of one Allicon who died on June 18, 1934. His promotion was authorized by the civil service commission. No written acceptance of the position was ever made by the plaintiff. His appointment was made after the "acceptance" of the budget for 1935, and no supplementary budget was passed.

The plaintiff was paid his wages in 1935, 1936 and 1937. He performed his duties in 1938 and 1939, but was not paid his wages for certain weeks in November and December. 1938, and in December, 1939, although in those years sufficient money to pay his wages in full was included in the budget for his department for swimming pools and was appropriated by votes of the city council. In November, 1938 when he did not receive his pay, the plaintiff talked with the alderman-director of his department, who told him the appropriation had been exhausted, that "it would straighten out somehow but to work . . . ." He did so. In December, 1939, under similar circumstances, he talked with the alderman-director and was informed that there was not enough money left to pay him. The plaintiff continued to perform his duties. No written notice was ever given the plaintiff or the civil service commission of suspension from work or lowering of his compensation, as required by G. L. (Ter. Ed.) c. 31, Section 43.

The judge found specifically that the plaintiff is a permanent employee under civil service; that in the years in question there was in the itemized account in the budget submitted by the mayor the sum of $2,002 for the salary of the supervisor of swimming pools, the plaintiff being the only one in that class; that the budget was approved; that "the appropriation was exhausted by using for purposes other than the plaintiff's salary"; that the latter was told to carry on and the matter would be adjusted later; and that the plaintiff continued his services and performed them faithfully. The judge denied the defendant's eighteen requests for rulings.

The only contentions of the defendant that relate to the questions of law raised by its exceptions to the denial of its requests for rulings are that the plaintiff's appointment was never validly made; that even if he was a civil service employee that fact did not give him "the right to continued employment at the expense of municipal economy"; and that, to permit him to recover the wages in question would be in violation of the municipal finance act and the defendant's city charter. (St. 1911, c. 621.)

In support of the first contention set forth above, the defendant argues that the plaintiff's "appointment" in September 1935, was a "new position" or "increase in rate," and that, having been made after the submission of the annual budget and no provision having been made therefor by a supplementary budget, as required by the municipal finance act, G. L. (Ter. Ed.) c. 44, Section 33A, it was invalid from the time when it was made. We do not adopt that view, and are of opinion that the case of McHenry v. Lawrence, 295 Mass. 119 , cited by the defendant, is distinguishable in its facts. In that case the actions were brought by the plaintiffs to recover salary for the period between their appointments and the adoption under G. L. (Ter. Ed.) c. 44, Sections 32, 33A, of the annual budget. The amounts subsequently appropriated in that budget were insufficient to pay their salaries, and no further appropriation...