MILES P. ROBINSON & others vs. SELECTMEN OF WATERTOWN.

WHITTEMORE, J. This is an appeal under G. L. (Ter. Ed.) c. 213, Section 1D, from the final judgment of the Superior Court which was entered November 13, 1956, pursuant to order for judgment of October 16, 1956, and which, as a matter of discretion, dismissed a petition for a writ of mandamus. The petitioners are three voters, taxpayers, and property owners of the town of Watertown. The respondents are the selectmen of the town. The petition seeks to compel the selectmen to act under Spec. St. 1919, c. 205, which inter alia established a limited town meeting system of government in the town, and to call a special meeting of the voters at large to vote by ballot on the questions involved in certain votes passed by the limited town meeting of August 6, 1956. The votes in terms amended c. 10 of the town by-laws which, under G. L. (Ter. Ed.) c. 41, Section 108A, as appearing in St. 1948, c. 351, established a wage and salary classification plan. The effect of the amendment would be to increase rates of pay stated in the plan.

The case was tried on agreed facts with a bill in equity for a declaratory decree brought by certain employees of the town against the treasurer and "the Inhabitants of the Town of Watertown." A final decree was entered in that case on October 23, 1956, adjudicating that such votes were not subject to the referendum procedure of Spec. St. 1919, c. 205, Section 8,

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and that the salaries and wages of the plaintiffs in that case and of all other employees had been duly established for the year 1956 by votes at the earlier annual (1956) limited town meeting, [Note p539-1] and ordering the treasurer to pay at the amended, higher rates. This final decree was assented to by the attorney for the plaintiffs in that case and by town counsel for "Inhabitants of town of Watertown." The plaintiffs and the town waived appeal and no appeal was taken by the treasurer.

1. The final declaratory decree in the suit in equity has not made the issues in this case res judicata. The petitioners were not parties to that suit. In suing the town by the name "Inhabitants of the Town of Watertown" (see Lowell v. Morse, 1 Met. 473, 474), the plaintiffs did not sue the several citizens collectively. The right of citizens to maintain a petition for a writ of mandamus to enforce a public duty (Brooks v. Secretary of the Commonwealth, 257 Mass. 91, 93, Brewster v. Sherman, 195 Mass. 222, Sears v. Treasurer & Receiver General, 327 Mass. 310, 315; compare Kaplan v. Bowker, 333 Mass. 455) is not merely a derivative right. See Brooks v. Secretary of the Commonwealth, supra, page 93; Attorney General v. Suffolk County Apportionment Commissioners, 224 Mass. 598, 611. We need not determine whether citizens may be foreclosed who seek a writ after the entry of a final decree in a contested proceeding in which their town was a party. [Note p539-2] That issue is not presented.

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It is manifest that the plaintiffs in the declaratory proceeding were seeking to sustain the validity of the votes of the limited town meetings. The selectmen in contesting this mandamus proceeding had the same purpose. Their answer appropriately sets out that "the subject matter contained in [the] articles . . . related to salaries and wages which . . . were not proper subjects for determination by the voters at large at a referendum town meeting, and that the action of the limited town meeting on August 6, 1956, on said articles was final and conclusive . . .." The respective adversary positions of the plaintiff employees and the petitioning citizens at the joint trial doubtless assured fully adequate presentation of the contested issues, even though the circumstance of the joint trial made neutral the position of the town, its officers who had been sued, and town counsel, who represented the defendants in the equity proceedings and the respondents in this case.

Although the importance of the issue and the possibility of a reversal, on appeal, of the judgment in this case could have been thought with good reason to make advisable a claim of appeal from the declaratory decree, we may assume that the circumstances did not require it. Acceptance of the Superior Court decree as final could not, however, broaden its effect. The issues were presented in the Superior Court in two cases tried together. At the time of the consent decree and waiver of appeal in one of them, the petitioners, the only parties who had maintained an adversary position to the view of the law taken in the declaratory decree, had not waived their right to have this court, on appeal, pass on the issues. In these circumstances the assent of the town to the decree cannot foreclose that right. We do not think that the petitioners were bound to seek to join as parties in the declaratory proceeding, even if, as the answer of the respondents indicates may have been the case, they would have been accepted as parties without objection, and the declaratory proceeding was filed before the petition herein. Since these petitioners were not true privies of the town as a corporate party their right of appeal is unaffected.

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In the circumstances the fact that there is an unappealed and hence final declaratory decree outstanding does not bar our determination of the issues in the pending case with the effect of establishing a different and superseding construction of the controlling statutes.

We do not intend to suggest that the declaratory decree is not binding on those who are parties thereto with the effect of putting beyond legal attack payments which have been made thereunder. See Lesberg v. Lesberg, 260 Mass. 216, 221; Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 375; Butte, Anaconda & Pacific Railway v. United States, 290 U.S. 127, 135-136, cited in Attorney General v. Trustees of Boston Elevated Railway, 319 Mass. 642, 667. Compare, for recovery of public funds paid under mistake of law, but without judicial sanction, Attorney General v. Trustees of Boston Elevated Railway, supra, and cases cited.

2. The coming of another fiscal year does not make the matter moot. The plan by its term fixes the compensation of the affected employees. The procedure for amendment initiated in 1956 has been arrested by a decision of the selectmen the validity of which is under attack. If that decision was invalid there is no basis for asserting that the plan has been amended to prescribe higher rates of pay for any period.

3. The votes of the limited town meeting to amend the compensation and classification plan were subject to the referendum procedure.

These votes were taken under the provisions of G. L. (Ter. Ed.) c. 41, Section 108A, and c. 10, Section 3, of the by-law constituting the plan, and the issue is the meaning of the phrase "by vote of the town at a town meeting" as used in Section 108A. [Note p541-1]

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Although the statute would control, there is no difference in the meaning of the slightly different phrase of the by-law "by the Town Meeting"; a vote is required in any case.

The concept of a town meeting divided in time and method of action on articles for the meeting, but called under a single warrant, is well understood in this Commonwealth. General Laws (Ter. Ed.) c. 39, Section 23, provides that "A town which accepts this section or has accepted corresponding provisions of earlier laws may provide that the election of town officers shall take place at any time within seven days before or after the annual meeting held for the transaction of other business. The time and place of holding such election and vote shall be stated in the warrant for the annual town meeting and such election and vote shall be deemed parts of the annual town meeting."

The use of ballots in the course of a town meeting for the election of officers and the determination of other matters is a long standing practice. The convenience of providing that the balloting be at a different time has been recognized by statute. General Laws (Ter. Ed.) c. 39, Section 22, provides: "A town may by by-law designate the hour at which the annual town meeting shall be called, and, subject to section sixty-four of chapter fifty-four, may by vote or by-law designate the hours during which the polls shall remain open; and may provide that all business, except the election of such officers and the determination of such matters as by law are required to be elected or determined by ballot, shall be considered after a certain hour, or by adjournment to another day." The statute also provides that towns may vote to use official ballots. G. L. (Ter. Ed.) c. 41, Section 6. Thus it is standard and common procedure in this Commonwealth to call and conduct a town meeting in two parts, at one of which the exclusive business is the conduct, over a

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specified number of hours, of a secret ballot poll, much as an election for city, State or national officers is conducted. Although this has none of the aspects of a meeting in the usual sense, the business done is that which is a firmly established part of the town meeting.

Watertown's limited, or representative, town meeting form of government was created by and operates under Spec. St. 1919, c. 205, as amended by St. 1920, c. 638, and St. 1924, c. 358. [Note p543-1] This statute, we think, provides for two kinds of

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town meeting action, following the established concept, one of which consists of the balloting by the voters at large, at a time and place separate from the meetings of the town meeting members, on all those matters, including referenda, which require submission to all the voters. Thus Section 5 provides: "The articles in the warrant for every town meeting, so far as they relate to the election of the moderator, town officers, and town meeting members . . . referenda, and all matters to be acted upon and determined by ballot, shall be so acted upon and determined by the voters of the town in their respective precincts. All other articles in the warrant for any town meeting shall be acted upon and determined exclusively by town meeting members at a meeting to be held at such time and place as shall be set forth by the selectmen in the warrant for the meeting, subject to the referendum provided for by section eight."

The strong implication from the statement in Section 5 that referenda questions are to be placed before the voters in a town meeting warrant is made emphatic by the direction of Section 8 that the selectmen, if the proper preliminary steps are taken, "shall forthwith call a special meeting [emphasis added] for the sole purpose of presenting to the voters at large the question or questions so involved." [Note p544-1] The act in setting up the limited town meeting recognizes that Watertown's town meeting action will be more extensive in scope than the proceedings of the limited meeting, for it provides in Section 3, "Any town meeting held under the provisions of this act, except as otherwise provided herein [emphasis added], shall . . . be limited to the . . . [members of the limited town meeting]." And Section 9 provides that ". . . such limited

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town meetings shall exercise exclusively, so far as will conform to the provisions of this act[emphasis added], all powers vested in the municipal corporation." In places in the statute (see Section 3) the words "town meeting" are used to refer only to the limited meeting, but the context explains this and prevents the extension of the narrow meaning to the other uses of the words. In Section 8, where the distinction is important, the limited meeting is in every case so named.

If the use of the phrase "by vote of the town at a town meeting" were deemed to indicate an intention that the vote of the limited town meeting should be exclusive and final, much of the business of the town would be concluded by the vote of the limited meeting. General Laws (Ter. Ed.) c. 40, Section 5, as amended, provides that "A town may at any town meeting appropriate money for the exercise of any of its corporate powers . . ." (emphasis added). As noted above, nothing turns on the absence of the words "by vote" as that is the way a town meeting acts. The vote of the limited meeting would be conclusive also in respect of a number of other decisions as to which the relevant statute specifies that the necessary action is to be by, in, at, or of, a "town meeting" rather than "by the town." See G. L. (Ter. Ed.) c. 40, Section 4A (authorizing contracts with other government units for performance of public service); c. 40, Section 6F (permission to make repairs on private ways); c. 40, Section 12B (formation of public beach district); c. 40, Section 13A (appropriations for workmen's compensation insurance funds); c. 40, Section 13B (appropriation for residence of school physician); c. 40, Section 44 (establishment of improvement district); c. 40B, Section 3 (membership in planning district); c. 41, Section 6 (use of official ballots); c. 41, Section 21 (election of selectmen when authorized to act as or appoint other officers); c. 41, Section 70 (election of planning board); c. 41, Section 81A (vote to establish planning board); c. 41, Section 81E (adoption of official map); c. 41, Section 82 (establishment of art commission). See c. 41, Sections 69C and 69F, for provisions for town meeting action in the first instance by ballot.

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In the entire context it is plain that G. L. (Ter. Ed.) c. 108A in prescribing action "by vote of the town at a town meeting" includes the voting of voters at large of Watertown at a referendum town meeting.

The significance of Sampson v. Treasurer & Receiver General, 282 Mass. 119, is, we think, contrary to the contention of the respondents, to confirm the foregoing construction. There the Legislature provided that St. 1930, c. 419, should take effect "upon its acceptance by a majority of the town meeting members of the town of Weymouth present and voting thereon at a meeting legally called for the purpose" and we held that the Legislature meant what it said in making use of the "members" of the limited meeting, that it "did not deal with them acting as a town meeting," and that the relevant provisions for referenda were "applicable only to town meeting action." In distinguishing St. 1932, c. 193, "where the power to accept is given to a majority of town meeting members of Winchester voting `at a town meeting of said town'" (page 123), we emphasized the special nature of the provision applicable in Weymouth.

4. There is nothing in the contention of the respondents that the compensation rates for 1956 were fixed by votes at the 1956 annual meeting under article 3, as to which no referendum petition was filed. The vote under that article was that "the following items as shown in the schedule be and hereby are appropriated for the use of the various town departments for the current year." The amounts appropriated were such amounts as would be needed if the new and higher compensation rates were to become effective. This vote made it possible to pay these rates (see G. L. [Ter. Ed.] c. 44, Section 31); it did not authorize the rates. If prior to the adoption of the plan there was no statutory or by-law limitation on what a department head might pay an employee, the appropriation was the only authorization needed for a particular wage or salary. The existence of the plan ended that effect of the appropriation. There could be no implication that a vote under article 3 was intended

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as an amendment of the plan. This would be so in the absence of articles to amend the plan and raise rates; the presence of those articles in the warrant makes it emphatic.

5. As the statute required the calling of the town meeting to vote on the referenda and the petitioners were not foreclosed by the declaratory decree, there was no room for the exercise of discretion to deny the writ. Elmer v. Commissioner of Insurance, 304 Mass. 194, 199. Massachusetts Society of Graduate Physical Therapists, Inc. v. Board of Registration in Medicine, 330 Mass. 601, 605-606.

6. The judgment appealed from is reversed. Judgment is to be entered in the Superior Court directing the respondents to place before the voters at large at a town meeting not later than the annual 1958 meeting, the referenda questions presented in the petition therefor, in accordance with Spec. St. 1919, c. 205, as amended.

So ordered.