377 Mass. 621 | Mass. | 1979
In the year 1975 the town of Wellesley’s board of public works (herein sometimes called "the board”) made it known that it thought the board of selectmen of the town and the town counsel were not pursuing with sufficient vigor the remedies owing to the town for a fraud or other irregularities growing out of a refuse disposal contract. The board took the position that, as
In the end, a town meeting of April 25, 1977, in effect invited the board to litigate the issues: the meeting voted to authorize the payment of legal expenses to be incurred by the board in retaining counsel to make the test. Accordingly the board through such counsel commenced the present action in the Superior Court on September 1, 1977, naming the board of selectmen and the town of Wellesley as defendants,
We deal first with the question of the board’s power to initiate litigation for the benefit of the town and to retain independent counsel. Then we discuss briefly an issue of interest to the parties (not passed on below) which can arise when town counsel finds himself in a situation of conflict.
1. With respect to the initiation of litigation for a recovery of money or for other remedies inuring to the benefit of the town, the defendants point to a provision of the by-laws (art. III, § 3) which grants to the selectmen "full authority as agents of the Town ... to institute, prosecute, defend and compromise any and all claims, actions, and proceedings on behalf of or against the Town and in which the interests of the Town are or may be involved.” No other municipal department or official is granted this power. The appointment of the selectmen as "agents” is
As to the authority to engage counsel, art. X of the by-laws, entitled “Law Department,” provides for the annual appointment of town counsel by the selectmen and describes his functions, among which is the power and duty “to appear as counsel in any ... action, suit, or prosecution which may involve the rights and interests of the Town.” And when requested he must “consult with and advise any board, commission, committee, or officer of the Town and ... furnish a legal opinion upon any subject respecting the official duties thereof.” Accompanying this statement of town counsel’s functions is a by-law provision prohibiting generally the retaining of other counsel. Such a prohibition was enacted by the town in 1929 and was carried forward in by-law revisions of 1937 and 1950. On November 8,1977 (shortly after the commencement of the present action), a town meeting rejected proposed amendments which would have deleted the provision or, by added language, have rendered it inapplicable to the board of public works. Instead the meeting enacted a strengthened provision reading as follows (art. X, § 5): “Unless expressly authorized by Statute, a vote of Town Meeting, or vote of the Selectmen, no board, commission, committee or officer of the Town shall
Municipal enactments centering legal activities in a counsel officially appointed are common (as noted in O’Reilly v. Scituate, 328 Mass. 154, 155 [1951]); their purpose to control expense and improve management is evident; and it is not disputed that the town acted within its acknowledged general powers in enacting the instant bylaw provision. Nor is it questioned that the board of public works is comprehended in the by-law words "board... of the Town.” Compare the remarks in Commonwealth v. Oliver, 342 Mass. 82, 83-84 (1961).
Thus on a superficial view the board would appear not authorized to commence litigation for the town and prohibited from retaining separate counsel for such litigation or for other purposes. What the board undertakes to argue is that its basic statute, G. L. c. 41, §§ 69C-69F, on the one hand makes it an agent to sue for the town in respect to matters arising from its functions or duties, and on the other hand operates to erase pro tanto, as inconsistent, the prohibitory by-law as to using counsel other than town counsel.
Under the statutory provisions thus accepted, particularly § 69D, the board of public works, consisting of three elected officials serving three-year terms, is a consolidation of a number of town boards, departments, and offices, including the road commissioners (see G. L. c. 41, § 64), surveyor of highways (§ 62), superintendent of streets (§ 68), water commissioners (§ 69B), sewer commissioners (§ 65), municipal light board (G. L. c. 164, § 55), park commissioners (G. L. c. 45, § 5), and tree warden (G. L. c. 87, § 2). On the board of public works are conferred "all the powers and duties now or from time to time vested by general law or special act” in the enumerated town agencies, as well as such additional powers as the town may provide by by-law regarding the furnishing of engineering services, the collection and disposal of garbage and refuse, and the performance of duties of other town agencies which are reasonably related to the duties of a board of public works. By special acts one of the board’s predecessors was authorized to exercise powers of eminent domain (St. 1907, c. 567), and the board of public works has been authorized to make sewer connections and enter into contracts "in the name and behalf of the town” for that purpose (St. 1959, c. 139), and to employ a method of apportioning sewerage construction costs other than those described in G. L. c. 83, § 15 (St. 1973, c. 104). And by art. XI of its by-laws, the town gave the board authority over engineering functions and the collection and disposal of refuse and garbage. Each year the board in the name of the town has contracted for (among other things) refuse disposal, construction of sewer connections, and engineering services.
Nor does the consolidating statute confer on the board in any form of words a power to engage its own counsel. (We exclude from this remark the singular instance that the board’s takeover of the functions of the municipal light board may be supposed to include the express power granted to the light board by G. L. c. 164, § 56, to employ counsel — but only as to matters of a type formerly committed to that board.) Again the board urges that a power be implied, but in the present context that would amount to negating, by some emanation from the consolidating statute, the local legislation on the precise point. We have said that the "legislative intent to preclude local action must be clear.” Bloom v. Worcester, 363 Mass. 136, 155 (1973), discussing Amendments to the Constitution of the Commonwealth, art. 89, § 6 (home rule principles). It could not be said that the consolidating statute creates such a "comprehensive scheme” as should be construed to defeat the local regulation. Compare Taunton Greyhound Ass’n v. Dighton, 373 Mass. 60 (1977), with New England Tel. & Tel. Co. v. Lowell, 369 Mass. 831, 835 (1976), and DelDuca v. Administrator of Methuen, 368 Mass. 1 (1975). The board is met with other difficulties.
To return to the place of beginning, when the board apprehended (with what justification we cannot say) that town counsel was being lax in prosecuting the alleged frauds, its recourse was, under the by-law, to the selectmen, or to a town meeting, for permission to engage independent counsel (with additional action, if any was needed, to secure authority to carry on the necessary litigation).
2. The board suggests that even if, as a general rule, it must obtain approval from another source before engag
Judgment affirmed.
Apparently disagreements had arisen about the employment of counsel in disputes with contractors, various town departments, and the board of selectmen itself.
The original complaint named only the board of selectmen, which moved to dismiss on the ground that the town was the proper party defendant. Denying the motion, the judge ordered the plaintiff to amend its complaint to join the town, and the complaint was so amended.
It may be noted that the board of public works has never requested the town meeting to authorize it to hire independent counsel; the town’s by-laws may be amended by a majority vote of those present at the town meeting. See also n.7, second paragraph.
The declaration states:
”1. That Article X of the By-Laws of the Town of Wellesley (the Town Counsel By-Law, so-called) is a valid By-Law, and is a valid exercise of the power given to municipalities to enact By-Laws not inconsistent with any general or special law.
“2. The Town of Wellesley’s acceptance of G. L. c. 41, §§ 69C-F, did not abrogate, suspend or override the Town Counsel By-Law as applied to Wellesley’s Board of Public Works.
”3. The prohibition in Wellesley’s Town Counsel By-Law against any town board or officer engaging counsel without an approving vote of the Selectmen or the Town is applicable to and binding upon a consolidated Board of Public Works established pursuant to the voters’ acceptance of a General Law.
“4. The Board of Public Works of the Town of Wellesley does not have authority to sue in the name of the Town in that it has not been appointed an 'agent’ for such purpose pursuant to G. L. c. 40, § 2.”
When this action was commenced, and when the judgment below was entered, the by-law provision stated: "No board, commission, committee or officer of the Town shall, unless authorized by a vote of the Town or of the Selectmen, employ, advise with or consult any attorney or counselor at law, other than the Town Counsel, with regard to its or his duties or to any Town business, or the business of any of the departments thereof, when the charge for such advice or consultations is to be made to the Town, or is to be paid out of the funds of the Town or of any department thereof.”
These cases dispose of the board’s argument that predecessor boards or officials, to whose functions it succeeded, had inherent power to hire separate counsel. (This is surely not shown to be the case as to any municipal agency that formerly dealt with refuse or garbage disposal.) The argument is most obscure. Cases are cited which indicate that a municipality may not by local legislation interfere with the performance of duties cast on local officials by State statute (see Municipal Light Comm’n of Taunton v. Taunton, 323 Mass. 79 [1948]; Tuckerman v. Moynihan, 282 Mass. 562 [1933]) but the cases appear irrelevant to the proposition contended for, and in any event beg the question whether the board has a statutory power to use separate counsel or to bring suit.
We may mention here that the board advances evidence that it has brought suit without express authorization in the past. To this end it introduced an affidavit from its supervisor of customer accounts, who collects overdue electric and water bills. The supervisor stated that he had, on a number of occasions, filed and prosecuted complaints in the name of the town. The board also suggests that town counsel had on August 4, 1977, provided the board with a standard release form to enable the department of public works to settle claims on behalf of the town. But we have held that a practice of bringing suit through separate counsel could not validate a violation of a municipal prohibition directed against such a procedure. Butler v. Charlestown, 7 Gray 12, 16-17 (1856). And in an opposing affidavit town counsel stated that he had been unaware of the board’s asserted practice of bringing suit;
We may observe that when the Legislature has intended to authorize municipal boards and departments to retain separate counsel it has known how to do so. See, e.g., G. L. c. 71, § 37E (school committees); G. L. c. 71, § 16 (j) (regional school district).
The preferred course for a board which has received authorization to bring suit on behalf of the town is to do so in the town’s name, Natick v. Massachusetts Dept. of Pub. Works, 341 Mass. 618 (1961); Board of Health of Woburn v. Sousa, 338 Mass. 547, 548 (1959), but we have not insisted that pleadings be formally amended to substitute the name of the town for that of the board inadvertently used. See School Comm. of Hatfield v. Board of Educ., 372 Mass. 513, 514 n.l (1977); Building Inspector of Wayland v. Ellen M. Gifford Sheltering Home Corp., 344 Mass. 281, 286-287 (1962). See also Board of Pub. Works of Millis v. Aron, 374 Mass. 246 (1978).
We do not mean to exclude the possibility that in extraordinary or emergency situations an exception might be made to the general principles set forth in point 1 of our text. See Walpole v. Gray, 11 Allen 149, 151 (1865).
The judge below, in declaring against the board, wrote an opinion in which he included the statement that the board would have authority to engage counsel in special circumstances in which it sought relief in the nature of mandamus against another board or an officer of the town. He later struck the statement as not germane to the declaration requested in the pleadings (he ruled that a motion to enlarge the pleadings had been improvidently granted, and vacated the order). The parties at argument before us joined in requesting consideration of a question which we have attempted to formulate in the text.
For cases of some interest, though in varying settings, touching upon the authority of a municipal board to engage counsel to obtain a judicial resolution of a dispute with another municipal agency, compare Glensor, Clewe & VanDine v. Andriano, 99 Cal. App. 607 (1929), and State ex rel. Finlayson v. Gorman, 117 Minn. 323 (1912), with Cahn v. Huntington, 29 N.Y.2d 451 (1972), and Judson v. Niagara Falls, 140 App. Div. 62 (1910), aff'd, 204 N.Y. 630 (1912).
The judgment is to be understood in a qualified sense so far as the board acts in succession to the municipal light board.