
    Frank Mendes & others vs. City of Taunton & another.
    November 6,1973.
    
      Orlando F. DeAbreu, City Solicitor, for the city of Taunton & another.
    
      E. David Wanger for the plaintiffs.
   This is a bill for declaratory relief brought by members of the Taunton fire department against the city of Taunton and its mayor to determine the validity of an ordinance providing for a pay increase for members of the fire department effective January 1,1972, and to compel payment thereof. The factual background of the dispute is set forth in Mendes v. Taunton, ante, 486 (1973), which upheld a decree of the Superior Court declaring invalid a 1971 ordinance insofar as it purported to grant a 1972 pay increase. The Superior Court decree was entered June 12, 1972. On August 8, 1972, the city council passed over the mayor’s veto the ordinance at issue here. After refusal of the mayor and the city to pay the increases provided by this ordinance, the present suit was commenced. The city and the mayor appeal from a final decree declaring the 1972 ordinance valid. We are of the opinion that the ordinance is valid, and that the pay increase must be given effect. Unlike the earlier case concerning the 1971 ordinance, the present case involves an ordinance and a pay increase both of which were in effect for more than three months in the financial year in which the ordinance was passed. The city’s contention that G. L. c. 44, § 33A, is violated because no prior provision was made for the increase by supplemental appropriation cannot be sustained, for it is conceded that funds to pay for the increase were recommended, whether inadvertently or not, in the mayors 1972 appropriation requests and approved by the city council on March 28, 1972, as part of the 1972 city budget. A supplemental appropriation for precisely the same purpose was not needed and was therefore not required by § 33A. Brucato v. Lawrence, 338 Mass. 612, 617 (1959).

Final decree affirmed.  