JOHN J. FORBES vs. CITY OF WOBURN.

LUMMUS, J. In June, 1921, an ordinance of Woburn was enacted, creating the office of inspector of wires and gas, and entrusting the determination of the salary to the superintendent of public works. See G.L. (Ter. Ed.) c. 166, Section 32. The plaintiff was appointed, and ultimately his annual salary was fixed at $800. By ordinance in April, 1931, the annual salary was raised to $3,000. Up to the end of June, 1938, the plaintiff was paid at that rate. After that date he received nothing, because the appropriation for the year 1938 was exhausted. But that fact affords the city no excuse for nonpayment, the position being within the classified civil service. Barnard v. Lynn, 295 Mass. 144. Fortin v. Chicopee, 301 Mass. 447, 448. On December 15, 1938, the plaintiff brought this action to recover the unpaid

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salary subsequent to June, 1938. There was a finding for the defendant. The plaintiff's exceptions bring the case here.

The only defence is that neither the ordinance of 1921 nor that of 1931 was approved or published as required by G.L. (Ter. Ed.) c. 40, Section 32, or by the amendment to that statute made by St. 1933, c. 185. The judge found that none of the requirements of those statutes were met. If compliance with those statutes was essential to the validity of an ordinance, then the plaintiff's salary was never lawfully established, for it could have been established only by ordinance. St. 1897, c. 172, Section 20, as amended by Spec. St. 1917, c. 182. Fortin v. Chicopee, 301 Mass. 447, 449. Goss v. District Court of Holyoke, 302 Mass. 148. We assume without deciding that unless a salary was validly attached to his office, the plaintiff can recover nothing for his services. Riopel v. Worcester, 213 Mass. 15. McHenry v. Lawrence, 295 Mass. 119. The decisive question is, whether G.L. (Ter. Ed.) c. 40, Section 32, and St. 1933, c. 185, apply to cities in general and in particular to the city of Woburn. Upon that question we are asked to reconsider Fortin v. Chicopee, 301 Mass. 447.

By Rev. Sts. (1836) c. 15, Sections 13, 15, the formal requisites for the validity of town by-laws were (a) that they be approved by the court of common pleas for the county, and (b) that they be published in one or more newspapers printed in the county. No time was prescribed for publication, and the language could be read as directory rather than as laying down a condition of validity. See Commonwealth v. Davis, 140 Mass. 485. Approval or refusal to approve could not be brought to this court for review. Weymouth, petitioners, 2 Cush. 335. The court of common pleas or a justice thereof in vacation became the approving authority by St. 1855, c. 222, the Superior Court or a justice thereof in vacation became the authority by St. 1859, c. 196, Sections 3, 15, 55, and Gen. Sts. (1860) c. 18, Section 14, and the Attorney General succeeded to the function by St. 1904, c. 344. See also St. 1905, c. 144; West Springfield v. Mayo, 265 Mass. 41. Delivering a copy of the by-law

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at every occupied dwelling or apartment was made an alternative to publication by St. 1919, c. 275. Approval and publication were clearly made conditions precedent to the taking effect of a by-law by R.L. (1902) c. 25, Section 26. The amendment made by St. 1933, c. 185, allowed publication in a town bulletin or pamphlet copies of which are posted in public places, instead of either publishing in a newspaper or delivery at every occupied dwelling or apartment. Before that amendment the law in force in 1921 and 1931 was found in G.L. c. 40, Section 32. It required, "before a by-law takes effect," approval by the Attorney General, and either publication in a newspaper or delivery at every occupied dwelling or apartment.

By Rev. Sts. (1836) c. 2, Section 6, Seventeenth, "The word `town' may be construed to include all cities and districts, unless such construction would be repugnant to the provision of any act, specially relating to such cities or districts." That provision can be traced into G.L. (Ter. Ed.) c. 4, Section 7, Thirty-fourth, which reads: "`Town,' when applied to towns or officers or employees thereof, shall include city." G.L. (Ter. Ed.) c. 4, Section 7, Twenty-second, originating in Gen. Sts. (1860) c. 3, Section 7, Twenty-first, provides: "`Ordinance,' as applied to cities, shall be synonymous with by-law." In the earlier history of cities in this Commonwealth, the word by-law was often used to designate enactments by cities that are now usually called ordinances. By Gen. Sts. (1860) c. 19, Section 2, "chapter eighteen and all other laws relating to towns, shall apply to cities so far as they are not inconsistent with the general or special provisions relating thereto." That section is now substantially included in G.L. (Ter. Ed.) c. 40, Section 1. Furlong v. Ayers, 305 Mass. 455. Commonwealth v. Kimball, 299 Mass. 353, 356. We see no reason to doubt the correctness of the proposition upon which Fortin v. Chicopee, 301 Mass. 447, was said to rest, namely, that in the absence of controlling statutory provisions the requirements of G.L. (Ter. Ed.) c. 40, Section 32, and St. 1933, c. 185, apply to cities as well as towns, and the question is whether any controlling statutory provision exists that makes those statutes inapplicable to cities in general

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or to a particular city. Various statutes enacted after cities were chartered in Massachusetts imply that proposition pretty clearly. St. 1847, c. 166; but see St. 1847, c. 262. St. 1855, c. 222. St. 1857, c. 82. It underlies also the opinion of the Attorney General in 1923, found in 7 Op. A. G. 235. The many charter provisions cited later in this opinion, making some parts of G.L. (Ter. Ed.) c. 40, Section 32, inapplicable to particular cities, assume the same underlying proposition.

The correctness of that proposition had little practical importance during the early history of cities in Massachusetts. The first city to be chartered was Boston. Both its early charters provided that its by-laws or ordinances "shall take effect and be in force from and after the time therein respectively limited, without the sanction or confirmation of any court, or other authority whatsoever." St. 1821, c. 110, Section 15. St. 1854, c. 448, Section 35. An ordinance might be made to take effect upon its passage. In such a case approval or publication, which could hardly take place until the form of the ordinance had been finally determined by its passage, could not be a condition precedent to its validity. Accordingly the charter provision was held to dispense with approval and publication. Commonwealth v. Davis, 140 Mass. 485. Commonwealth v. Lagorio, 141 Mass. 81. Commonwealth v. McCafferty, 145 Mass. 384. With the single exception of the Taunton charter of 1864, every city charter granted before or in 1873 contained substantially the words just quoted from the charters of Boston. [Note p70-1]

A veto power over ordinances requiring concurrent action

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by the board of aldermen and the common council was given by St. 1873, c. 139, Section 1, to the mayor of every city accepting the act. The statute provided that if the ordinance should not be returned by the mayor with his written objections within ten days, the ordinance "shall be in force." If he should so return it, and it should again be approved by a two-thirds vote, "it shall be in force." By St. 1876, c. 193, this was extended to all cities, and a mayor was no longer allowed to vote at a meeting of the aldermen, as had been allowed by some charters. The act of 1876 is in substance the present G.L. (Ter. Ed.) c. 39, Section 4. Impliedly those statutes dispensed with approval and publication of ordinances that were subject to veto, for there would be no time for approval and publication as conditions of the taking effect of an ordinance if it was to "be in force" immediately upon the lapse of ten days or the taking of a certain vote. See Quinn v. Cambridge, 187 Mass. 507, 508. That was the position taken by the Attorney General in 1923 as to a similar statute. 7 Op. A. G. 235. The charter of Woburn contains a like provision for veto of any ordinance adopted by the city council, a single chamber. St. 1897, c. 172, Section 25. The charter of Chicopee contains a like provision for veto of any ordinance adopted by the board of aldermen, also a single chamber (St. 1897, c. 239, Section 27), but neither the existence nor the effect of such a provision was called to the attention of the court in Fortin v. Chicopee, 301 Mass. 447.

The provisions of G.L. (Ter. Ed.) c. 39, Section 4, have no application to ordinances adopted by a single chamber. [Note p71-1] Moreover, some charters have contained an express provision that the mayor shall have no veto power. [Note p71-2] Others have express provisions for veto by the mayor, some of which apparently cover much the same ground as the

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statute, [Note p72-1] while others extend to ordinances enacted by a single chamber. [Note p72-2] Whether special charter provisions supersede similar provisions of the statute apparently has not been decided. Galligan v. Leonard, 204 Mass. 202, 203, 204. It may be that the fact that G.L. (Ter. Ed.) c. 39, Section 4, does not apply to all ordinances has kept alive from 1873 to the present time the practice of inserting in city charters various provisions tending to dispense with the approval and publication of ordinances.

Some charters later than 1873 followed the original Boston form. [Note p72-3] A few expressly eliminated both approval and publication. [Note p72-4] Many contented themselves with dispensing completely or partially with the approval of any court, justice or other authority. [Note p72-5] Some contained express provisions as to the time when ordinances should take effect, and some of these were inconsistent with any idea

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of approval or publication. [Note p73-1] Others contained no suggestion that G.L. (Ter. Ed.) c. 39, Section 4, could be applicable. [Note p73-2] A number contained special provisions for publication, [Note p73-3] and these have developed into a general provision for publication applicable to the five short forms of charters offered to cities by G.L. (Ter. Ed.) c. 43, as now amended. That general provision (G.L. [Ter Ed.] c. 43, Section 23) does not make publication a condition precedent to validity, and could hardly do so consistently with the provisions for veto contained in Sections 55 and 63. See 7 Op. A. G. 235. It is to such provisions for publication that G.L. (Ter. Ed.) c. 40, Section 32A, applies.

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This review of legislation shows that it is impossible, without examining every city charter, to be sure that there is no city to which G.L. (Ter. Ed.) c. 40, Section 32, and St. 1933, c. 185, are applicable. For the purposes of the present case it is enough that the charter of Woburn (St. 1897, c. 172, Sections 18, 25) makes them inapplicable to that city. The ordinances in question were valid though not approved by the Attorney General nor published. The same situation existed in the city of Chicopee. But the decision in Fortin v. Chicopee, 301 Mass. 447, was right, although a wrong reason was given. The budget appropriation bill in that case, making inadequate appropriation for the salaries of the plaintiff and other firemen, was not in any sense an ordinance fixing the compensation of members of the fire department as required by the city charter.

The ruling that G.L. (Ter. Ed.) c. 40, Section 32, and St. 1933, c. 185, were applicable to the ordinances in question was erroneous. The exceptions to that ruling must be sustained. The findings show that judgment ought to be entered for the plaintiff for the amount of the declaration, with interest. G.L. (Ter. Ed.) c. 231, Section 124.

So ordered.