Home DAVID D. NORTH, JUNIOR, & others vs. CITY COUNCIL OF BROCKTON & others.

341 Mass. 483

October 4, 1960 - December 2, 1960

Plymouth County

Present: WILKINS, C. J., SPALDING, WILLIAMS, WHITTEMORE, & CUTTER, JJ.

A demurrer should have been sustained to the petition in a suit in equity by ten taxpayers of a city under G. L. c. 40, Section 53, attacking an ordinance substantially reducing the work week of the members of the fire department where the only allegations of the petition respecting the city's raising or expending money or incurring obligations were that if the reduced work week became effective it would be necessary for the city to appoint additional firefighters at an increased payroll cost and to incur other great costs in order to give the city adequate fire protection.

PETITION IN EQUITY, filed in the Superior Court on August 6, 1959.

The case was heard by Smith, J.

Edward H. Stevens, for the interveners.

George L. Wainwright, for the petitioners.


WILKINS, C. J. This petition by not less than ten taxpayers of Brockton is brought against the city council, the city manager, and the chief engineer of the fire department. G. L. c. 40, Section 53. Its purpose is to enjoin the expenditure of money or the incurring of obligations under an ordinance reducing the work week of the members of the fire department from fifty-six to forty-eight hours. Members and officers of the City Firefighters Union, Local No. 144, a labor union of the AFL-CIO, were allowed to intervene as party respondents. They filed a demurrer, which was overruled, and they appealed. There later was a hearing on the merits which resulted in a final decree declaring the ordinance invalid and purporting to enjoin its enforcement. The intervening respondent again appealed.

Page 484

There were six grounds of demurrer. If any one of them is good, the demurrer should have been sustained. Hiller v. American Tel. & Tel. Co. 324 Mass. 24 , 25. The third ground is, "A taxpayers' petition, under G. L. c. 40, Section 53, cannot be brought to challenge an ordinance passed by the council of the city of Brockton unless some illegal expenditures are contemplated by the passing of the ordinance, which is not shown by the petitioners' bill of complaint as amended."

The statute provides ten taxpayers with this remedy by injunction only "If a town or any of its officers or agents are about to raise or expend money or incur obligations purporting to bind said town for any purpose or object or in any manner other than that for and in which such town has the legal and constitutional right and power to raise or expend money or incur obligations . . .." Our cases have emphasized the basic provision that the town or its officers must be about to raise or expend money or incur obligations. Dealtry v. Selectmen of Watertown, 279 Mass. 22 , 27. Amory v. Assessors of Boston, 310 Mass. 199 , 202. Lowell v. Boston, 322 Mass. 709 , 733-735. East Side Constr. Co. Inc. v. Adams, 329 Mass. 347 , 351-352. Lynch v. Cambridge, 330 Mass. 308 , 311. Clark v. Mayor of Gloucester, 336 Mass. 631 , 632.

The petition does not contain such allegations. The nearest approach is found in allegations upon information and belief that if the forty-eight hour week becomes effective, in order to give the city adequate fire protection, it will be necessary to appoint twenty-six additional firefighters at an increased payroll cost of $115,000, and that there will be other great additional costs. The demurrer should have been sustained.

The final decree is reversed. The interlocutory decree overruling the demurrer is reversed, and a new interlocutory decree is to be entered sustaining the demurrer. A new final decree is to be entered dismissing the petition.

So ordered.