ROBERTA A. CAMACHO & another vs. BOARD OF SELECTMEN OF STOUGHTON.

FINE, J. This appeal concerns the proper interpretation of the referendum provision in the Stoughton town charter as it affects a referendum petition seeking to have the voters of the town pass on an across-the-board pay raise for nonunion town employees.

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Article 11 of the Stoughton town charter provides that "[a] vote passed at any representative town meeting authorizing the expenditures of any sum, as an appropriation other than town charges . . . (emphasis added)" may be the subject of a referendum. [Note 1] The 1988 annual town meeting held in May voted to approve a budget including appropriations for salaries for town employees not covered by collective bargaining agreements. [Note 2] A timely petition for a referendum, with the requisite number of signatures, was filed with the town clerk and presented to the selectmen. The petition sought to have the voters approve or disapprove "that portion of the annual budget presented to and approved by the 1988 Annual Town Meeting in the form attached hereto as `A' [Note 3] . . . providing pay raises for nonunion town employees including those positions on attachment `B' [Note 4] hereto in excess of 5.5% . . . ." The selectmen declined to

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act on the petition. The two plaintiffs, both of whom were registered voters, taxpayers, and town meeting members, brought this mandamus action against the selectmen seeking, among other things, an order that the selectmen call a special election pursuant to the referendum petition.

The plaintiffs moved for summary judgment, relying on their complaint and the documents attached: the charter provision authorizing referenda; the petition for a referendum; and a letter from the Department of Revenue. One of the plaintiffs had written to the department concerning the referendum petition and had received a lengthy response from the chief of the department's property tax bureau. The response was to the effect that the pay raise issue raised in the petition would be a proper one for a referendum under the Stoughton town charter. The selectmen opposed the motion for summary judgment, relying on an affidavit from the town clerk.

The principal issue argued on the motion in the trial court was the meaning of the term "town charges" in the charter. The Superior Court judge who ruled on the motion defined the term "town charge" as "an expenditure drawn from appropriated funds approved by the town to meet ordinary municipal expenses." She viewed the salary increases as "town charges" within that definition and, thus, exempt from challenge by a referendum. Accordingly, she ordered summary judgment in favor of the defendants. We affirm the judgment because the form of the referendum petition is such that the petitioners do not have the right to a referendum. We also comment on the meaning of "town charges."

1. There is no right to a referendum in this case because the petition does not conform to the requirements of the charter. The question the petitioners seek to put to the voters of Stoughton is clear and understandable: should salary increases for nonunion employees of the town voted for fiscal year 1989 take effect to the extent that they exceed 5.5%? It should, as an abstract proposition, be possible to ascertain how the budget items would stand if the voters were to decide to disapprove that salary increase. Contrast Gilet v. City Clerk of Lowell, 306 Mass. 170, 176 (1940). A difficulty with the question the

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petitioners seek to ask, however, is that it is not possible to express it in conformity with the requirements of Stoughton's charter. The charter requires that "[t]he questions . . . be stated upon the ballot in the same language and form in which they were stated when finally presented to the representative town meeting by the moderator as appears from the records of the meeting." Before Stoughton adopted its charter in 1972, its representative town meeting form of government was provided for in St. 1949, c. 213. Section 15 of c. 213 included a similar requirement for the form of the referendum question, except that the phrase "same language and form" was preceded by the word "substantially." The elimination of the word "substantially" in the charter reveals, we think, an intention to have the requirement as to the form of the referendum question strictly applied.

Under that strict construction, referendum questions asking whether the voters approve or disapprove appropriation measures would meet the formal requirements of the charter. The referendum petition in this case seeks to set aside salary increases which constitute a portion of certain appropriations voted. The particular salary increases challenged, in each case the portion of the total increase voted in excess of 5.5%, were not the subject of a vote or votes at the annual town meeting in May. Thus, the question the petitioners seek to pose cannot be stated in the same language and form as the question presented to the town meeting. We may not ignore the clear requirement of the charter as to the form of the question to be posed to the voters. [Note 5] Indeed, although at first blush it might

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be reasonable to let voters express their views on a salary increase, there is sound reason behind a statutory scheme that prevents putting to the voters a segment of a budget item whose components may well be interdependent.

2. The scope of the right to a referendum. As the issue is likely to arise again, we comment on the scope of the right to a referendum in Stoughton. As noted above, that right extends to votes "authorizing the expenditures of any sum, as an appropriation other than town charges." The term "town charges" does not appear to be widely used. In Stetson v. Kempton, 13 Mass. 272, 278 (1816), and other cases discussing the term "necessary town charges" (see, for example, Spurgias v. Morrissette, 109 N.H. 275, 277-278 [1969]; State v. Rand, 366 A.2d 183, 190 [Me. 1976]), the use of the phrase arose in the context of determining whether a municipality could raise and expend funds for a particular purpose. The term is used here in a very different sense. If the meaning of "town charges" in the Stoughton town charter were as broad as the town's power to appropriate and expend funds, the referendum provision, dealing exclusively with expenditures, [Note 6] would be for an "idle purpose, . . . a mere gesture." Gorman v. Peabody, 312 Mass. 560, 569 (1942). See Moore v. School Comm. of Newton, 375 Mass. 443, 449 (1978).

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Although the term "town charges" gives rise to some ambiguity in the present context, we think the motion judge correctly defined it to include ordinary municipal expenses which would appear on the annual town budget. The town clerk appended to her affidavit examples of town meeting warrants, dating back to 1961, which use the term "town charges" to describe the contents of the annual budget. That practice is of some significance in construing the meaning of language used in the charter adopted by the town in 1972. It is true that the term had been used by the Legislature as early as 1949 in connection with exemptions from referenda in Stoughton. Section 15 of St. 1949, c. 213, the special act which preceded the Stoughton charter, sets forth the right to a referendum using the identical term, "town charges," to define the measures which may not be the subject of a referendum. Whatever the term may have meant in the 1949 statute, however, its meaning in the Stoughton charter was certainly affected by its established local use prior to the town's adoption of the charter. Indeed, the difficulties inherent in posing a referendum question relating to an item included in the annual budget in conformity with the requirements of the charter as to the form of referendum questions supports the judge's broad definition of "town charges."

This broad interpretation of "town charges" does not leave the Stoughton referendum provision without force. It would apply at least to a vote on any nonmandatory expenditure not included within the annual budget. In that sense, with respect to fiscal matters, the scope of the referendum provision in the Stoughton charter is broader than the scope of the referendum provision applicable in towns which have representative town meeting governments but no charters. General Laws c. 43A, Section 10 (note 6, supra), provides that there may be referenda relating to fiscal matters in such towns only as to votes "authorizing the expenditure of twenty thousand dollars or more as a special appropriation." If the voters of Stoughton want the right to challenge town meeting votes on ordinary municipal operating expenses included in the town budget, they will have to amend the town charter.

Judgment affirmed.