352 Mass. 746 | Mass. | 1967
These two proceedings for declaratory relief were referred to a master, who filed a consolidated report. By interlocutory decrees, the report was confirmed with the addition of two rulings of law by the trial judge. Final decrees were entered declaring (1) that the Chicopee hoard of aldermen by order passed December 3, 1963, accepted St. 1963, c. 19 (providing a schedule of minimum annual compensation for police officers), and St. 1962, c. 520 (a similar statute concerning fire fighters); (2) that the plaintiffs are entitled to be paid in accordance with these statutes beginning on December 3, 1963; and (3) that referendum petitions (protesting the aldermen’s order of December 3) filed with the city clerk on December 18, 1963, did not comply with G. L. c. 43, §§ 38-42, require no action by the board of aldermen, and do not affect the operation of the orders of December 3, 1963. The defendants appealed from the interlocutory decrees and the final decrees. The facts are stated upon the basis of the master’s report and a stipulation (fn. 3).
On November 12, 1963, the second Tuesday of the month,
At the November 19 meeting the minimum compensation orders were given a second and final reading. See § 25 of the charter. All board members were present. One aider-man, who was then acting mayor, could not participate under § 30 of the charter.
On December 3, 1963, the first Tuesday in December, a regular monthly meeting of the board (fn. 3) was held. Letters were received from the mayor. Each letter referred to one of the orders and purported to veto that order in the manner provided by § 27 of the charter (fn. 2). Both orders were passed notwithstanding the mayor’s veto. A motion to reconsider the vote in each case was defeated.
On December 11, 1963, a special meeting was called by the mayor for purposes which included certification of the results of the November election. An order ratifying the results was referred to a committee. On December 17, 1963, another board meeting was held. A motion to reconsider the acceptance of the two minimum pay statutes was
On December 18, 1963, two referendum petitions (“protesting” the December 3 orders) were filed with the city clerk by three defendants (the three petitioning voters) all of whom were members of the defendant Chicopee Taxpayers Association, Inc. (fn. 1). Each of these referendum petitions was signed by over twelve per cent of Chicopee’s registered voters. Other facts concerning this petition are stated in point 2 of this opinion where the effect of the referendum petitions is discussed. The bills for declaratory relief raised various questions concerning (a) the validity of these referendum petitions and (b) whether the delay in declaring the results of the election held on November 5, 1963, prevented St. 1963, c. 734, from taking effect until too late to permit such referendum petitions.
1. The first question is whether the two readings given to the orders (accepting the minimum compensation statutes) at the board’s meetings on November 12 and 19 were valid final action (subject to the mayor’s veto and any available referendum) in view of Bule 1 of the board’s rules (fn. 3) placing regular meetings of the board on the first Tuesday of each month and the explicit provisions of § 13 of the charter (a) giving to the mayor the power and duty to call special meetings by written notice, ‘1 stating the subjects to be considered thereat,” and (b) forbidding “final action” at a special meeting “on any business not stated in such notice.” See McQuillin, Municipal Corporations (3d ed.) §§ 13.08,13.37; Bhyne, Municipal Law, § 5-5. The meetings are questioned because neither was held (a) on a day specified in Bule 1 for a regular meeting, or (b) at the call of the mayor.
We think all questions about these two meetings are met by the following considerations. (1) The November 12 meeting, by unanimous consent of the board of aldermen voted at the meeting on October 22, was held on that day, in lieu of the regular meeting for November (which would normally have been held on November 5, election day).
Accordingly, we hold that final action by the board of aldermen (subject to the mayor’s power of veto and to any referendum) on the two pay statute acceptance orders properly did take place at the meeting on November 19. On December 3, 1963, these orders were duly passed over the mayor’s veto at the regular meeting of the board of aider-men properly held on that day and became effective subject to any referendum.
2. We turn to the referendum petitions filed on December 18, 1963, with the city clerk, as already stated. If St. 1963, c. 734 (making available in Chicopee the referendum provisions of Gr. L. c. 43, §§ 37-44), had then been ef
(a) After the completion on December 16, 1963, of the last recount of votes cast at the election of November 5, 1963, there were meetings of the board of aldermen on December 17, 20, 23 (two meetings), 27, and 30, 1963. It was not until December 30 that the board adopted an order concerning ratification of the election (i.e. an order declaring its results). The mayor had twice requested earlier action on this declaration.
The board of aldermen were under a duty “forthwith” to declare the votes (see G. L. c. 54, § 137, as amended through St. 1935, c. 55) upon the question submitted to the voters at the November 5, 1963, election. Upon the facts found by the master, the only reasonable inference to be drawn was that there was deliberate delay by the board in announcing the result of the November 5 vote on the question. As to that vote no recount had been sought. This delay caused the declaration (on December 30,1963) of the November 5 vote to take place after December 23, the last day for filing a referendum petition concerning the board’s purported orders of December 3. See G. L. c. 43, § 42 (as amended through St. 1961, c. 550). The last day for asking a recount was November 12, 1963. See G. L. c. 54, § 135, as amended through St. 1963, cc. 234 and 627 (see also later amendments through St. 1966, c. 123, §§ 14, 15).
We need not decide whether, under § 137, the result of the vote on November 5 should (or could) have been declared by the board prior to the completion of other recounts concerning other issues or contests for public office. In any event, there had been public announcement of the result of that vote (see G. L. c. 54, § 105, as amended) followed by the expiration (without a petition for recount) of the period within which a recount petition could be filed with respect to that vote. Deliberate delay does not constitute the “due diligence” contemplated by the word “forthwith.” See Gamwell v. Bigley, 253 Mass. 378, 382; Commonwealth v. Bouchard, 347 Mass. 418, 420. Particularly is this so in a
Substantive rights of voters cannot thus be thwarted. By a mandamus proceeding action could have been compelled. The purpose of our election statutes is to ascertain, in a sensible and expeditious manner, the will of the voters (see Abbene v. Board of Election Commrs. of Revere, 348 Mass. 247, 250) and to inform the public promptly about election results. The purpose is not to be obstructed by such tactics. We treat the election declaration of December 30,1963, as relating back to November 5, 1963, the date of the election. Statute 1963, c. 734, provided that if the November 5 vote was “in the affirmative, this act shall thereupon take effect” (emphasis supplied). It did not say that the act would become effective when the board of aldermen got around to declaring the vote.
(b) The petitions for referendum filed on December 18, 1963, within twenty days after the votes of December 3, 1963, were reasonably expressed, as the master in effect found, in a form showing that each signer wished to protest against the orders “taking effect.”
We think that having the three petitioning voters sign the face sheet (adding their addresses) effected compliance with the italicized words of § 38 (fn. 5) and that this was,
3. The interlocutory and final decrees are reversed. The cases are to be remanded to the Superior Court for further proceedings consistent with this opinion. The Superior Court may retain jurisdiction of these cases until the referenda sought by the petitions filed December 18, 1963, have been held and the results declared. New final decrees are to be entered declaring (1) that St. 1962, c. 520, and St. 1963, c. 19, were accepted by votes of the board of aldermen on December 3,1963, subject, however, to the possibility of referenda; (2) that the referendum petitions filed December 18, 1963, were seasonably filed and were valid; and (c) that referendum questions concerning the acceptance of St. 1962, c. 520, and St. 1963, c. 19, are to be submitted to the voters at the next municipal election or at a duly called special election.
So ordered.
Chicopee’s charter (St. 1897, c. 239) provides (emphasis supplied), in part (§ 2), “The administration of all the . . . affairs [except those relating to the public schools] of said city . . . shall ... be vested in an executive department . . . the mayor, and in a legislative department, which shall consist of . . . the board of aldermen . . ..” (§ 13), “The board of aldermen shall hold regular meetings at such times as may be designated by the board by general rule. The mayor may at any time call a special meeting . . . and shall call a special meeting upon the request in writing of one third of the members. Such request shall state the subjects to be considered at the meeting. The mayor shall cause . . . [at least a twenty-four hour] written notice of such special meeting, stating the subjects to be considered thereat, to be given in hand to each member or to be left at his usual place of residence . . . and no final action shall be taken at such special meeting on any business not stated in such notice, except with the unanimous consent of all the members of the board. . . .” (§ 14), “The board of aldermen shall determine the rules of its own proceedings and shall be the judge of the election and qualifications of its own members. ... A majority of the members . . . shall constitute a quorum, but a smaller number may adjourn from day to day. The board shall, so far as is not inconsistent with this act, have and exercise all the legislative powers of towns . . . and ... all the powers . . . [of] the city . . . and it may by ordinance prescribe the manner in which such powers shall be exercised.” (§ 27), “Every ordinance, order ... or vote of the board of aldermen . . . [exceptions not relevant] shall be presented to the mayor. If he approves thereof he shall signify his approval by signing the same, but if not he shall return the same with his objections, to the board . . . which shall . . . proceed to reconsider . . . [the same] and if . . . two thirds of the board . . . notwithstanding such objections, vote to pass the same, it shall be in force. ...”
Rule 1 of the Rules and Orders of the board provided, “Begular meetings . . . shall be held on the first Tuesday evening in each month, at 7:30 o’clock, except when such day is a legal holiday, in which case the regular meeting for that month shall be held on the succeeding Wednesday evening.” The mas
Each petition consists of a face sheet addressed to the hoard of aldermen, a second sheet which is the certification statement of the board of registrars of voters, and over two hundred mimeographed petition sheets with the protest at the top and spaces for signatures below. These petition sheets do not indicate that they are addressed to the board of aldermen but do state that they are drawn pursuant to G. L. c. 43, § 42. The petition sheets “protest against . . . measure” and do not say in so many words that they protest against the measure “taking effect.”
Section 38 reads, “Signatures to initiative petitions need not be all on one paper. All such papers pertaining to any one measure . . . shall be filed in the office of the city clerk as one instrument, with the endorsement thereon of the names and addresses of three persons designated as filing the same. With each signature to the petition shall be stated the place of residence of the signer, giving the street and number, if any. Within five days after the filing of said petition the registrars of voters shall ascertain by what number of registered voters the petition is signed, and what percentage that number is of the total number of registered voters, and shall attach thereto their certificate showing the result of such examination. The city clerk shall forthwith transmit the . . . certificate with the said petition to the city council . . . and at the same time shall send a copy of said certificate to one or more of the persons designated on the petition as filing the same” (emphasis supplied).
Section 42 (as amended through St. 1961, c. 550), reads (emphasis supplied), “If, within twenty days after the final passage of any measure, except a revenue loan order, by the city council ... a petition signed by registered voters of the city, equal in number to at least twelve per cent of the total number of registered voters, and addressed to the city council . . . protesting against such measure . . . talcing effect, is filed with the city clerk, the same shall thereupon ... be suspended from taking effect; and the city council . . . shall immediately reconsider such measure . . . and if such measure . . . is not entirely rescinded, the city council shall submit the same ... to a vote of the registered voters of the city, either at the next regular city election, or at a special election . . . and such measure or part thereof shall forthwith become null and void unless a majority of the registered voters voting on the same at^such election vote in favor thereof. The petition described in this section shall be termed a referendum petition and section thirty-eight shall apply to the procedure in respect thereto, except that the words ‘measure or part thereof protested against’ shall for this purpose be understood to replace ‘measure’ in said section wherever it may occur, and ‘referendum’ shall be understood to replace the word ‘initiative’ in said section.”