ARTHUR YETMAN & others. [Note 1] vs. CITY OF CAMBRIDGE & others. [Note 2]

GREANEY, J. This appeal, arising out of a dispute between the Cambridge police and the city, concerns the definition of length of service on the police force for purposes of computation of vacation benefits for permanent police officers. The plaintiffs, all permanent members of the regular Cambridge police force, brought an action for themselves and on behalf of other permanent members of the force against the defendants, seeking a declaration under G. L. c. 231A that service time as an inactive reserve officer should be credited in the computation of a police officer's entitlement to vacation. Intrinsic to the dispute's resolution was the need to determine (a) whether Cambridge ordinance no. 154, [Note 3] enacted on May 17, 1948 (defining service for computation of vacation as commencing with the date of a policeman's appointment as a reserve officer) had been superseded or repealed by the city's acceptance of two pieces of permissive State legislation concerning the topic of police vacations, [Note 4] or by the city's general recodification of all of its ordinances enacted on May 8, 1972; and (b) whether the plaintiffs' seven year delay in pursuing their claims after the city abandoned computing vacation credit in light of the definition of service in ordinance no. 154 amounted to laches. A judge heard the dispute on stipulated facts and agreed exhibits and declared the rights of the parties to the effect that (1) ordinance no. 154 was not superseded nor repealed by the city's acceptance of permissive legislation

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regarding police vacations but was effectively repealed by the city's recodification of its ordinances in 1972, (2) that the 1972 recodification was properly enacted, and (3) any claims the plaintiffs may have had between 1967 and 1972 as a result of the city's change in vacation policy were lost by laches on their part.

1. Conflict between the statutes and the ordinance. We agree with the judge that ordinance no. 154 was not repealed or superseded by the city's acceptance of G. L. c. 41, Sections 111D and 111L, establishing length of police vacations. Repeal of a municipal ordinance by supervening Statewide legislation of general content is disfavored unless there exists "some positive repugnancy" between the terms of the ordinance and the legislation. Ryan v. Marlborough, 318 Mass. 610, 613 (1945). See also Druzik v. Board of Health of Haverhill, 324 Mass. 129, 135-136 (1949). A local ordinance may permissibly regulate the same subject covered by the statute "[i]f the State legislative purpose can be achieved in the face of a local ordinance or by-law on the same subject . . . ." Bloom v. Worcester, 363 Mass. 136, 156 (1973). Sections 111D and 111L of G. L. c. 41 provide for length of vacations based on years of service on the police force but are otherwise silent on how that service is to be calculated. Ordinance no. 154 could permissibly coexist within the interstices of the statutes to provide a definition of "service" (commencing with the date of reserve appointment) for purposes of allocating vacation time, a subject not addressed expressly or by necessary implication in either Section 111D or Section 111L of c. 41. The two enactments were, as ruled by the judge, "fully capable of being read together in furtherance of a common purpose." See Boston Police Patrolmen's Assn. v. Boston, 367 Mass. 368, 372-373 (1975).

2. Effect of the 1972 recodification. The judge also correctly concluded that the general recodification of the Cambridge ordinances enacted by the city council on May 8, 1972, repealed ordinance no. 154. The 1972 compilation was intended as a complete overhaul and updating of all

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of the city's ordinances. Not only the ordinance in contest, but also all other ordinances then in effect, were repealed by the clear and unequivocal language of Section 1-5 of the 1972 code which expressly provided that "all ordinances of the City heretofore in force are hereby repealed" (emphasis supplied). Further support for the fact that ordinance no. 154 was repealed is found in Section 15-5 of the revised code. That section provides fourteen day's annual vacation for police officers after six months of service. Significantly, it omits any reference to the definition of reserve service contained in ordinance no. 154. Taken as a whole, the 1972 ordinances deal with police vacations by allocating in Section 15-5 two weeks of time off to officers with less than five years' service, and by leaving vacation benefits for officers with more than five years of service to the provisions of G. L. c. 41, Sections 111D and 111L. [Note 5]

We see nothing in the city solicitor's letter to the city manager dated November 8, 1971, to aid the plaintiffs' position that the revised code was intended to maintain ordinance no. 154 in effect. In that letter, apparently admitted without objection, the solicitor informed the city manager with regard to the revised ordinances that "[n]o substantive changes have been made except the total fine has been increased to fifty dollars which is the legal maximum at present. Conflicting, redundant and repealed ordinances have been eliminated." The plaintiff argues that this language manifests an intent that no

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substantive changes were to be made in the existing ordinances with the exception of altering fines, thus leaving ordinance no. 154 in effect. But the fact that in 1967 the city had abandoned use of the date of reserve appointment for purposes of computing vacation time, and the fact that the council acted on the full text of the revised ordinances (which expressly repealed "all" prior ordinances, made no mention of the contents of ordinance no. 154, and provided a different scheme for vacations) sufficiently dispel any value that this correspondence may have for the conclusion that the provisions of ordinance no. 154 were incorporated by implication into the revised code. Moreover, the letter read in context indicates that the revision was indeed designed to repeal all existing ordinances.

Nor does the language in Section 1-9 of the revised ordinances, which provides that "[t]his Code shall not affect . . . any right accrued . . .," help the plaintiffs' position. While it is true that the repeal of an ordinance cannot act to deprive a person of vested economic rights or impair contractual obligations (see 6 McQuillan, Municipal Corporations Sections 21.15 and 21.45 [3d ed. 1969]), there is nothing in ordinance no. 154 which expressly vests a contractual entitlement to a certain amount of vacation time, a circumstance which the plaintiffs apparently recognized by the negotiation of two collective bargaining agreements which incorporated the city's computation of service for vacation credit, and abandoned the plaintiffs' reliance on the provisions of the repealed ordinance. [Note 6]

3. Procedural defects in the recodification. The plaintiffs contend that the recodification was invalid because the city failed to comply with the provisions of G. L. c. 43, Section 23, and the second paragraph of Section 3 of c. 1 of the Cambridge

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ordinances of 1943. The first sentence of G. L. c. 43, Section 23, as appearing in St. 1935, c. 68, Section 1, which added the emphasized phrase, provides, "Every proposed ordinance or loan order, except emergency measures as hereinbefore defined and revenue loan orders, shall be published once in full in at least one newspaper of the city, and in any additional manner that may be provided by ordinance, at least ten days before its final passage." The remainder of Section 23, which was unaffected by St. 1935, c. 68, Section 1, includes an exemption from publication for any "codification of ordinances or proposed ordinances . . . (which) exceed[s] in length eight octavo pages of ordinary book print." The exemption permits, in lieu of advertising, publication in a "printed pamphlet" at least ten days prior to final passage of the ordinances. The first paragraph of Section 3 of c. 1 of the 1943 Cambridge ordinances replicates of G. L. c. 43, Section 23, as in effect prior to St. 1935, c. 68, Section 1. The second paragraph of that same section, however, replicates the first sentence of G. L. c. 43, Section 23, as appearing in St. 1935, c. 68, Section 1. [Note 7] The full text of the

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1972 code of ordinances exceeded eight octavo pages of ordinary book print and the city, in reliance on the exemption from publication, contained in c. 43, Section 23, and the first paragraph of Section 3 of c. 1 of the 1943 ordinances, prepared a looseleaf photocopy of the new code and published three separate notices in the Cambridge Chronicle that the entire text of the ordinances would be available for examination in the city clerk's office. [Note 8] We find, as did the judge below, that the second paragraph of Section 3, c. 1, of the 1943 ordinances did not require publication of the entire text of the recodification and that a looseleaf photocopy of the code satisfied the requirement in the statutory exemption that a "printed pamphlet" be prepared. Any apparent inconsistency between the first and second paragraphs of Section 3 of c. 1 of the 1943 ordinances is remedied by a construction which concludes that the second paragraph was added to the chapter as an inept, but effective, attempt to conform the chapter to G. L. c. 43,

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Section 23, as appearing in St. 1935, c. 68, Section 1. [Note 9] Such a construction is reasonable and sensible, harmonizes both paragraphs of the ordinance with each other and with G. L. c. 43, Section 23, and promotes the legislative purpose of avoiding newspaper publication of the entire text of documents of extraordinary length. Publication in a looseleaf binder of a photocopy of the ordinances sufficiently complied with the printed pamphlet requirements of both the statute and the ordinance.

4. Laches. The final issue concerns the plaintiffs' seven-year delay in commencing suit after knowledge of the city's change in computation of vacations. Some time during the summer of 1967 the city ceased using inactive reserve time in computing vacations and instead measured length of service for vacations solely on an officer's active reserve or permanent service time. The judge ruled that the city had met its burden of establishing the defense of laches to cut off its liability to the plaintiffs for any damages between 1967 and 1972, when ordinance no. 154 remained in force.

Laches is an equitable defense consisting of unreasonable delay in instituting an action which results in some injury or prejudice to the defendant. Security Natl. Bank v. General Motors Corp., 345 Mass. 434, 441 (1963). Pettinella v. Worcester, 355 Mass. 412, 414-415 (1969). Three Sons, Inc. v. Phoenix Ins. Co., 357 Mass. 271, 278 (1970). Its presence is ordinarily a determination of fact based on the particular circumstances of the case. McGrath v. C.T. Sherer Co., 291 Mass. 35, 59-60 (1935). Tzitzon Realty Co. v. Mustonen, 352 Mass. 648, 650 (1967). There were findings that between 1971 and 1974 the city and the police union negotiated and signed two collective bargaining agreements. [Note 10] Both agreements adopted "current policies

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and benefits relating to vacations . . .," which had the effect of incorporating into the agreements the city's practice of using the date of an officer's permanent appointment in determining his vacation credit. The agreements also spelled out a grievance procedure for resolution of any dispute concerning the application or interpretation of any provision of the agreement and any disagreements with reference to "any law, ordinance, rule or regulation, policy or practice relating to the Police Department and its operations . . . ." [Note 11] The judge found as well that both the city and the police settled on the vacation clause in the agreements with full knowledge of the costs and benefits implicit in the current vacation policy and that the city, in reliance on the negotiated results embodied in the agreements, committed itself to funding the contracts.

We agree that the delay in commencing suit was inordinate [Note 12] and that, under the circumstances, the delay worked to the disadvantage of the city. The police failed, over the life of the first contract and during a portion of the time the second agreement was in force, to invoke the grievance apparatus either to test the city's interpretation of vacation benefits or to determine the applicability of the benefits purportedly granted by ordinance no. 154. There is merit in the defendant's argument that if the police had insisted on the pre-1967 vacation practices at the bargaining table, the city might have changed its position on other topics covered by the contracts, seeking in the give and take of negotiations some concessions from the union in exchange for lengthier vacations. Furthermore,

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based in part on the vacation policies as expressed in the executed agreements, the city appropriated amounts in its municipal budgets earmarked to implement the financial obligations required by the contracts. We conclude that the judge's findings as to laches are not clearly erroneous and are sound in law. [Note 13] The circumstances are governed in substance by the rule that "it would not be in accordance with sound principles to permit the plaintiff to accept in silence a stipulated weekly wage week after week and then, without previous notice, seek to recover more." Woods v. Woburn, 220 Mass. 416, 420 (1915). [Note 14]

Judgment affirmed.