402 Mass. 804 | Mass. | 1988
In this appeal, thirty residents of the town of Groton (Groton ratepayers) claim that, by virtue of the votes under two articles of the warrant for a special town meeting, a contract — known as the Project No. 6 power sales agreement (Project No. 6 PSA) — between the town and the Massachusetts Municipal Wholesale Electric Company (MMWEC), must be declared null and void.
The defendant MMWEC is a public instrumentality of the Commonwealth created under c. 775. Pursuant to authority conferred by that statute, MMWEC has developed a bulk power supply system consisting of ownership interests in various electric power facilities which serve, or are planned to serve, the New England area. MMWEC’s members include a number of Massachusetts municipalities. Any Massachusetts municipality may become a member by majority vote of the municipality as defined in G. L. c. 44, § 1 (1986 ed.). C. 775, § 3 (a). MMWEC is authorized to contract to sell to its members and others, and its members and others may contract to purchase “all or a portion of the capacity and output of one or more specific electric .power facilities.” Id. at § 6 (a).
The town of Groton became a member of MMWEC on April 26,1976, of its own volition, and has remained a member since that time. The town operates a municipal electric system through its light department. The light department is managed by a board of three municipal light commissioners (light board) and a manager appointed by the board. The town participates in several MMWEC projects through PSAs executed on the town’s behalf by the manager of the light department, acting pursuant to authorization of the light board. None of these PSAs was submitted to the town’s voters for approval.
The Project No. 6 PSA was executed and delivered to MMWEC by the manager on September 27, 1979, pursuant to a vote of the light board on September 12, 1979.
1. The Groton ratepayers argue that the town meeting votes are a valid exercise of the town’s home rule authority under § 6 of the Home Rule Amendment, art. 89 of the Amendments to the Massachusetts Constitution, and § 13 of the Home Rule Procedures Act, G. L. c. 43B (1986 ed.). In general, these provisions reserve to towns and cities the right to enact local ordinances or by-laws which are not inconsistent with the State Constitution or State legislation. Bloom v. Worcester, 363 Mass. 136, 155-156 (1973). We reject the plaintiffs’ argument because we conclude that home rule principles are inapplicable to the present situation.
The conflict here is not between local power and State power, but rather is between two organs of local power — town meeting and a town’s light board. The question presented concerns the scope of authority of a local light board to enter into certain contracts under c. 775 and the power of town meeting, if any, to limit that authority. The complete answer to this question was clearly forecast in the recently-decided case of Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 399 Mass. 640 (1987).
In Hull, the plaintiff had argued, inter alla, that certain agreements between the town’s lighting plant and MMWEC were void ab initia because the lighting plant lacked authority to enter into the'agreements. We observed that c. 775’s “legislative scheme does not require town approval for every power agreement entered into by the lighting plant. When the town authorized membership in MMWEC, as provided in c. 775,
2. G. L. c. 164, § 56C. The plaintiffs claim that the trial judge erred in ruling that the light board was not required to file a copy of the Project No. 6 PSA with the town auditor, pursuant to G. L. c. 164, § 56C (1986 ed.).
Whether or not c. 164 applies to the light board, the light board’s failure to file the PSA does not, in and of itself, render the contract null and void. As the judge below correctly noted, § 56C itself provides no such relief. Rather, the statute declares that “[a] city or town auditor, municipal light commissioner or manager wilfully failing to comply with this section shall be punished by a fine of not less than ten nor more than one hundred dollars.” Nowhere in the statute does it say that the effect of a failure to file is to render the contract void. Therefore, we reject the plaintiffs’ claim under § 56C.
3. Disposition. As noted, note 6, supra, it is not necessary to reach the questions whether the articles are inconsistent with c. 775 and thus invalid under home rule principles and whether the filing and public inspection requirements of G. L. c. 164, § 56C, apply to the light board. Therefore, aside from the portions of the judgment which purport to resolve those questions, the judgment is affirmed.
So ordered.
The plaintiffs concede that other claims raised in their complaint were disposed of by our decision in Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 399 Mass. 640 (1987).
A “project” is MMWEC’s ownership interest in specified electric power facilities.
By its terms, Project No. 6 PSA was not effective until “execution and delivery of [PSAs] by MMWEC and Participants whose Participants’ Shares total 100.0%.” The plaintiffs allege that, at the time of the town meeting votes, MMWEC did not have commitments for 100% of the participant shares of the project.
Therefore, we do not reach the question whether the votes, if adopted before the fact, would be inconsistent with St. 1975, c. 775. We note, however, that the town meeting votes were never submitted to the office of the Attorney General, whose approval is a necessary prerequisite to the enactment of a valid by-law. G. L. c. 40, § 32 (1986 ed.). Ballantine v. Falmouth, 363 Mass. 760, 765 (1973). Concord v. Attorney Gen., 336 Mass. 17, 22 (1957). Somewhat curiously, the Attorney General argues, as an amicus curiae, that the defendants should be estopped from asserting the failure to file as a ground for invalidity, because it was the town’s responsibility to ensure that the votes were filed. Even were we to accept this argument as to the town, it fails to estop MMWEC. We conclude, therefore, that the failure to file the votes also prevented their taking effect as by-laws.
General Laws c. 164, § 56C, provides, in pertinent part: “Every municipal light commission or manager thereof, who makes or executes a contract on behalf of a municipal lighting plant, where the amount involved is one thousand dollars or more, shall furnish said contract or a copy thereof to the