WILLIAM BISHOP & others vs. CITY OF FALL RIVER & others.

SPALDING, J. This is a petition in equity under G. L. c. 31, Section 47E, to enforce certain provisions of the civil service laws. At least two of the petitioners are taxable inhabitants of the city of Fall River (city) and all the petitioners hold permanent positions in the city.

The case was submitted on agreed facts: On December 11, 1951, the city accepted the provisions of G. L. c. 31, Section 47E, which provides that welfare employees of cities and towns shall be paid certain step rate increases for each year of service. [Note 1] On January 1, 1952, the Director of Civil Service, with the approval of the welfare compensation board, established a welfare compensation plan, which provided minimum and maximum salaries for welfare employees and set forth a table of annual step rate increases in salary beginning with the prescribed minimum and continuing until the maximum salary had been reached.

Subsequent to the adoption of the basic welfare compensation plan in 1952, two amendments to the plan were adopted, to become effective in 1957 and 1959, respectively. Each amendment increased the prescribed minimum and maximum salaries to be paid to welfare employees. After each amendment to the basic compensation plan, the city readjusted its salary scale but did not credit the workers with the step rate increases earned under the prior plans.

In 1957 a petition was brought by certain employees in the public welfare department of the city, and the Superior Court in its final decree ordered that after the adoption of each amendment to the compensation plan the petitioner-employees were entitled to receive the new minimum plus

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the step rate increases earned under the prior plan. The city adjusted the salaries of the employees in accordance with that decree and the litigation terminated without appeal. Three of the petitioners in the present case were parties to the prior litigation. A similar petition was brought in 1959 by one Berube and others, and in 1961 the Superior Court, relying on the decision in the 1957 case, ruled in favor of the employees. No appeal was taken from the decree in that case. None of the petitioners in the present proceeding was a party to the Berube proceeding.

The petition here was brought in April of 1962 and in August of that year the court entered a decree ordering that the petitioners' salaries "be re-established by adding thereto the increments earned to date by being advanced to that median or maximum compensation grade established by the Amended Compensation Welfare Plans which are similar or comparable to their own. . . ." From this decree the city appealed.

Three of the petitioners here who were parties to the 1957 proceeding contend that the favorable decree in that litigation is res judicata and, therefore, the city is concluded by the court's previous construction of the 1957 amendment to the plan. We do not agree.

The question presented in this proceeding is purely a question of law. Hitherto, this court has not had occasion to consider the application of res judicata to matters of law when such application would treat members of the same class differently. Restatement: Judgments (1948 Supp.), Section 70, comment f, provides, in part, that the "determination of a question of law by a judgment in an action is not conclusive between the parties in a subsequent action on a different cause of action, even though both causes of action arose out of the same subject matter or transaction, if it would be unjust to one of the parties or to third persons to apply one rule of law in subsequent actions between the same parties and to apply a different rule of law between other persons." We are of opinion that this principle is controlling. Assuming that this proceeding arises "out of

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the same subject matter or transaction," the city, in this separate and distinct cause of action to enforce a subsequent amendment to the plan, should not be bound by the prior decree that adjudicated the petitioners' rights under the 1957 amendment. Such a decision would result in the employees who were parties to the prior litigation receiving higher compensation than their fellow workers who were similarly situated. The injustice to these workers who were strangers to the prior proceeding is obvious.

All five petitioners argue that the decision in the Berube case in 1961 (to which they were not parties) estops the city to contest the issues of law decided in that proceeding. In support of this position the petitioners rely on the case of Giedrewicz v. Donovan, 277 Mass. 563. This argument has been fully discussed and rejected in the case of Albernaz v. Fall River, ante, 336.

In this court the petitioners have relied solely on res judicata and collateral estoppel and have not argued the question of the construction of the amendments. However, as to that question our decision in Albernaz v. Fall River, ante, 336, is controlling.

The final decree is reversed and a new decree is to be entered dismissing the petition.

So ordered.