306 Mass. 170 | Mass. | 1940
This is a petition of three registered voters of the city of Lowell for a writ of mandamus commanding the respondent city clerk of Lowell to transmit to the board of
On February 6, 1940, the mayor submitted to the city council a budget, in accordance with law, containing itemized recommendations for appropriations to be expended by the various departments and officers of the city for the year 1940. On March 19, 1940, the city council passed an appropriation order amounting to $5,338,893.46. This order followed the recommendations of the mayor except as to eight items that were either reduced or eliminated. On April 1, 1940, the petitioners filed with the city clerk a petition containing the signatures and addresses of eight thousand seventy persons purported to be registered voters. The number of registered voters in Lowell did not exceed fifty thousand. This petition, after reciting that the city council on March 19, 1940, by final action passed an order appropriating the sum of $5,375,451.46 for the purpose of meeting fixed charges and current expenses of the city for the fiscal year 1940, alleges: “We . . . hereby protest in accordance with General Laws, (Ter. Ed.) Chapter 43, Sec. 42, as amended, against said appropriation order taking effect in excess of $4,953,370.87.” On April 1, 1940, the petitioners requested the city clerk to transmit said petition
It is unnecessary to consider many of the contentions that have been argued, for if it be assumed, without deciding, that a referendum petition relative to a municipal appropriation order is available, we are of opinion that the petition in question does not meet the requirements of § 42 of said c. 43.
Said § 42, as amended by St. 1935, c. 68, § 2, provides, so far as material, that if within twenty days after the final passage of any measure, except a revenue loan order, by a city council, a petition signed by a specified number of registered voters of the city is presented to the council protesting against “such measure, or any part thereof” taking effect, the same shall thereupon and thereby be suspended from taking effect, and the city council shall immediately reconsider “such measure or part thereof,” and if “such measure or part thereof is not entirely rescinded, the city council shall submit the same ... to a vote of the registered voters of the city.”
Section 37 of said c. 43 provides, in part, that “In this and the eight following sections [including said § 42], 'measure' shall mean an ordinance, resolution, order or vote passed by a city council . . . .” Upon the basis of our assumption, as hereinbefore stated, the question is presented
G. L. (Ter. Ed.) c. 44, commonly referred to as the municipal finance act, in §§ 32 to 34 inclusive, as amended by St. 1938, c. 175, § 1; c. 378, § 16, and as appearing in St. 1938, c. 170, contains carefully drawn provisions relating to budgets in cities. The importance of these provisions, the purpose for which they were adopted, and the limitations imposed by them have been the subject of several decisions of this court. See Flood v. Hodges, 231 Mass. 252; Shannon v. Mayor of Cambridge, 231 Mass. 322; Leonard v. School Committee of Springfield, 241 Mass. 325; Averell v. Newburyport, 241 Mass. 333; Daly v. Mayor of Medford, 241 Mass. 336; Decatur v. Auditor of Peabody, 251 Mass. 82; Parkhurst v. Revere, 263 Mass. 364; Burt v. Municipal Council of Taunton, 275 Mass. 535; Whalen v. City Forester of Waltham, 279 Mass. 287; Remington Typewriter Co. v. Revere, 285 Mass. 1; McHenry v. Lawrence, 295 Mass. 119; Barnard v. Lynn, 295 Mass. 144; Continental Construction Co. v. Lawrence, 297 Mass. 513; Feltham v. Springfield, 300 Mass. 193; Fortin v. Chicopee, 301 Mass. 447; McCarthy v. Malden, 303 Mass. 563.
It is provided by § 32 of said c. 44, as amended by St. 1938, c. 175, § 1, that the mayor of such cities as Lowell, within sixty days after the annual organization of the city government, shall submit to the city council the annual budget of the current expenses of the city. “The budget shall consist of an itemized and detailed statement of the money required, and the city council, by a majority vote, shall make such appropriations in detail, clearly specifying the amount to be expended for each particular purpose; but the budget shall not be in such detail as to fix specific
The mandatory provisions of the statute relative to the itemized and detailed statement of the money required and that the appropriations shall be made in detail except as to certain specific salaries, the requirement that the budget shall clearly specify the amount to be expended for each particular purpose, the power of the city council to reduce or reject items, the provision that they shall not, without the approval of the mayor, increase any item in or the total of a budget, nor add any item thereto, and the power of the city council to make appropriations in detail in case of the
The provisions of § 42 of said c. 43, relative to the right of protest against a “measure, or any part thereof” should be given the full sweep intended by the Legislature, but where, as here, in relation to such a highly important matter as that of the budget in cities, the Legislature has so plainly indicated that — it being still assumed, without deciding, that a budget order is subject to the referendum — a budget order is, by express mandate, made up of specific items, wherein the amount to be expended for each purpose is clearly specified, except as to the provisions relative to specific salaries heretofore referred to, we are of opinion that the words “any part” of such an order refer to specific items therein contained. In ascertaining the intent of the Legislature with respect to the scope and nature of the referendum powers that it has conferred, it is appropriate and important to consider what the consequences of applying it to a particular act of legislation would be, and, if it is found that the exercise of those powers tends to destroy the efficacy of other governmental mandates, the court ought not to place such an interpretation upon the grant of the
It is the contention of the petitioners that the measure in question was a single order and that they have protested against a definite, easily ascertainable part thereof taking effect. As a practical matter, and for the moment apart from other considerations, the question well may be asked as to how the budget appropriation would stand if the petitioners’ protest prevailed. If each detailed item should be reduced pro rata, it is apprehended that difficulties might arise similar to those present in Barnard v. Lynn, 295 Mass. 144, and cases that have followed it.
It is true that in Brown v. City Council of Cambridge, 289 Mass. 333, which was a bill in equity by more than ten taxpayers to restrain the defendants from expending any money or incurring any obligations in connection with a special election, from submitting a question to the voters at a special election, and for other relief, a petition signed by the required number of registered voters protesting against the taking effect of the budget for the school committee for the year 1934 “in excess of $1,847,955.57,” the amount expended for the school department in the year 1933, was filed under §§ 38 and 42 of said c. 43. The question of the form of the protest did not arise, however, inasmuch as the bill was ordered dismissed for other reasons. In some respects the protest in the Brown case differs from that in the case at bar in that the amount stated is the amount expended in the previous year. We express no opinion, however, as to the sufficiency of the form of the protest in that case. Obviously, it is no authority for the form in the case at bar.
In Feltham v. Springfield, 300 Mass. 193, the plaintiff, a chief of the fire department, brought an action to recover a portion of his established compensation. The city council reduced three items relating to the fire department that were contained in the budget as submitted to it by the mayor, and “reduced the total of the budget to” a specified sum. It was voted that “the heads of each department be and hereby are directed to absorb the amounts so reduced as to
The writ was properly denied.
Petition dismissed.