EDNA J. CARROLL & others vs. CITY OF MALDEN.

KEVILLE, J. This bill in equity marks the culmination of a five year dispute between the mayor of the city of Malden and the school committee (committee). The

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controversy centers on the alleged failure of the committee to submit seasonably its budget estimates for the annual support of the public schools to the mayor within the forty-five day period prescribed by G. L. c. 44, Section 32, as amended through St. 1953, c. 79, [Note 1] in which the mayor must submit his estimate of the entire city budget to the city council (council) for its approval. The bill was brought by ten or more taxable inhabitants of the city under G. L. c. 71, Section 34. [Note 2] The plaintiffs have appealed from a final decree dismissing the bill.

We have before us a report of the evidence, an agreed statement of facts (which does not purport to include all the facts and is, therefore, not to be considered a case stated, see Ring v. Woburn, 311 Mass. 679, 681 [1942]) and the judge's findings, rulings and order for decree adopted by him as his statutory report of material facts. In the circumstances all questions of law, fact and discretion are open for our decision. We may find facts not expressly found by the judge. If convinced that he was plainly wrong, we may find facts contrary to his findings.

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Juergens v. Venture Capital Corp. 1 Mass. App. Ct. 274 (1973).

The facts may be stated as follows: The Malden city government (see n. 1) was organized for the year 1972 on January third. The committee submitted its 1972 budget requests to the mayor on February tenth. The total request by the committee was for $7,759,930. On the following morning the mayor, having determined that he had insufficient time to consider the school budget during the week remaining prior to the expiration of the forty-five day period prescribed for his submission of the entire city budget to the council (see n. 1), directed the controller to assemble and substitute the school expenditures for 1971 for the budget proposed by the committee. That day, February eleventh, the city budget, including the substituted school budget, was sent to the printer. On February fifteenth, the mayor submitted this budget to the city council which adopted it on March twenty-eighth. The total sum thus appropriated for schools was $745,939 less than the amount requested by the committee.

It was the mayor's opinion that the committee had been tardy in submitting its annual budget requests in 1968, 1969, 1970 and 1971. The mayor had, in those years, protested that late submission prevented his examination of the requests, and he had in each of those years, as in 1972, submitted the committee's expenditures for the previous year rather than the amount requested by the committee. Later in each of those years, he had submitted a supplementary budget for the committee following a study of its requests.

Following this practice in 1972, the mayor submitted a supplementary request for the committee in the sum of $728,939 which was adopted by the council. However, including the supplement, the school budget for 1972 fell short of the amount originally requested by the committee by $17,000. Of the deficiency, $7,000 was earmarked for a feasibility study of a "Community Schools"

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program, so called, which the committee claims to be authorized under the provisions of G. L. c. 71, Section 71. The remaining $10,000 was part of the committee's OM-7 account entitled "Maintenance." [Note 3]

The reason assigned by the committee at the hearing on this bill for the delay in the submission of its budget to the mayor was that it had been in collective bargaining negotiations with the teachers' association on the question of teachers' salaries since the beginning of the school year. It had hoped to conclude these negotiations successfully so that exact salary figures might be included in the budget. However, the committee was finally obliged to submit estimated figures for teachers' salaries to the mayor because it had not yet been able to reach an agreement with the teachers. Almost all other items in the committee's estimates had been ready well in advance of the submission date. Although he found no reason for the delay, the judge did find "[t]hat the negotiations with the . . . teachers as to salary adjustment . . . [were] not the reason for presenting the budget so late to the mayor." We need not decide on this record whether the reason assigned by the committee for its delay was sufficiently persuasive for us to have reached a different conclusion from that of the judge since it is only one of the factors for consideration. The decisive question is whether the committee submitted its estimates so late as to preclude their consideration by the mayor prior to the time when he was required to submit the entire city budget to the council.

The mayor was an ex-officio member and a former member of the committee. He attended the committee

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meeting on February eighth at which the budget estimates were adopted. At that time, and prior thereto in 1972, he made no specific request that these figures be submitted to him at an earlier date. Nor did he at that time disclose to the committee his apparent feeling that a seasonable time for the submission of the school budget had already passed. At the February eighth meeting he expressed only his objection to the "Community Schools" item and his intention to delete it from the budget. The evidence reveals no effort on the mayor's part to scrutinize the budget estimates submitted by the committee on February tenth before substituting the school expenditures for the preceding year, although a week remained within which he could have met the statutory deadline.

The committee was not required as were other municipal departments to file its budget estimates between November first and December first for the ensuing year. G. L. c. 44, Section 31A. Young v. Worcester, 333 Mass. 724, 726 (1956). Hilliker v. Springfield, 349 Mass. 353, 357 (1965). However, the committee was obliged to submit them to the mayor at some time prior to the expiration of the forty-five day period following the organization of the city government (Young v. Worcester, supra, at 729) within which he was obliged to submit the total city budget to the council. Hayes v. Brockton, 313 Mass. 641, 650 (1943). (See n. 1.) Following receipt of the budget from the mayor, the council had forty-five days in which to study and to act upon the budget. G. L. c. 44, Section 32 (2), as amended through St. 1953, c. 79. (See n. 1.) A precise deadline has not been established for the submission of the committee's estimates to the mayor either by statute or judicial decision. See Young v. Worcester, 333 Mass. at 727. It has been stated that "Since . . . the executive cannot submit `the annual budget' without the school committee items, a submission earlier than just prior to the expiration of the forty-five day period which omitted these items, and was made without express request to the committee for the

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items, reasonably made as to time, would not be a compliance with the statute. And a submission by the committee so near to budget submission time as to deprive the executive of an opportunity to consider its effect on the budget total might not be timely." Young v. Worcester, supra, at 729. [Note 4]

Without more precise criteria to guide us on the question of timeliness, we do not conclude that the committee's submission of the budget was so late that it precluded adequate consideration by the mayor before the deadline. Nor did it justify his substituting the preceding year's expenditures for the current estimate submitted by the committee on February tenth. As an ex-officio member of the committee, the mayor had prior knowledge of the content of the estimates. Furthermore, there was no indication that he requested an earlier submission of the 1972 estimates although he had ample opportunity to do so. Nor did he attempt to study the estimates in the week remaining prior to the deadline for the submission of the city budget to the council.

We turn to the remaining question whether the deletion of $7,000 for a study of the use of school buildings for a community schools program was warranted. The judge ruled that such programs "are not any part of the authority vested in school committees under Chapter 71, Section 34." [Note 5] The only contention offered by the

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city is that the committee had neither express nor implied authority to "appropriate" money for such a program.

The question requires an examination of the relationship between G. L. c. 71, Section 34, and G. L. c. 71, Section 71. [Note 6] Prior to St. 1826, c. 143, Section 5, which inaugurated the school committee system, the duty to appropriate money for public schools and to make educational policy at the local level was lodged in the town meeting. With the advent of the school committee system, the duty to appropriate remained in the town meeting but the right to make educational policy gradually shifted to the school committee. In the ensuing century and a half, a strong tradition of school committee autonomy has developed supported by judicial decision. Casey v. Everett, 330 Mass. 220, 222-223 (1953). Bell v. North Reading, 363 Mass. 505, 510 (1973). As noted in the Casey decision, supra, at 222-223, G. L. c. 71, Section 34, implicitly recognizes that the committee's autonomy in matters pertinent to the management of public schools can be preserved only if the local legislative body is barred from exercising financial veto power. "The school committee has no power to tax or to appropriate or borrow money, and G. L. (Ter. Ed.) c. 71, Section 34, clearly contemplates that the governmental body which has such power may choose to exercise it in derogation of the requirements of the general law governing schools and school committees." Under Section 34, "Every city . . . shall annually provide an amount of money sufficient for the support of the public schools as required by this chapter" (emphasis

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supplied), and the section authorizes a taxpayers' suit to assure the appropriation of the "necessary" funds.

In Pirrone v. Boston, 364 Mass. 403, 406-407 (1973), the court stated that "[t]he Legislature has required that every city and town must provide the funds necessary for the support of local schools, and has authorized the device of the ten taxpayer suit as a means of enforcing that requirement. G. L. c. 71, Section 34. [The Supreme Judicial Court] . . . has consistently interpreted Section 34 as permitting no discretion to the local appropriating authority to reduce the total amount of funds which has been determined by the school committee to be necessary for school purposes. . . . [T]he city council or town meeting must appropriate the full amount requested by the school committee (at least to the extent such funds are `necessary' for c. 71 purposes)."

It has been held that within a wide limit "necessary," as applied to the funds required for school support, means "reasonably deemed by the committee to bear a relation to its statutory mandate" (emphasis supplied). Day v. Newton, 342 Mass. 568, 570 (1961), and cases cited. Contrast Eastern Mass. St. Ry. v. Mayor of Fall River, 308 Mass. 232, 237 (1941). Also, it is not the function of the court to inquire "whether the budget presented by the school committee was an expedient one. Ring v. Woburn, 311 Mass. 679, 683 [1942]. Graves v. Fairhaven, 338 Mass. 290, 293 [1959]. The standard remedy against an extravagant or otherwise misguided school committee is simply to turn the members out of office as their terms expire." Bell v. North Reading, 363 Mass. 505, 510-511 (1973).

The scope of the committee's authority to request appropriations is substantially defined by its powers and duties under c. 71. See Decatur v. Auditor of Peabody, 251 Mass. 82, 86 (1925); Eastern Mass. St. Ry. v. Mayor of Fall River, supra; Ring v. Woburn, 311 Mass. 679 (1942). The inclusion of Section 71 within c. 71 is indicative

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of legislative intent to cloak the committee with authority to utilize school property for the activities described in that section and to treat its provisions in the same manner accorded other provisions of that chapter, viz., that activities authorized by c. 71 be funded by the city pursuant to the mandatory language of Section 34.

The stated purpose of Section 71 is to promote "the usefulness of public school property." It in effect requires, inter alia, the committee "consistently and without interference with the use of the premises for school purposes, to turn over buildings erected under peremptory statutory requirements as public school buildings to individuals and associations." Warburton v. Quincy, 309 Mass. 111, 115 (1941). See G. L. c. 71, Section 71B, inserted by St. 1968, c. 283. [Note 7]

In addition to their stated purpose, the provisions of Section 71 (enacted by St. 1911, c. 367, Section 1) were evidently designed to promote broader citizen participation in more comprehensive educational programs at the local level. Utilization of school property for the purposes of this section has been characterized as compliance "with an express legislative mandate." Warburton v. Quincy, supra, at 117.

While Section 71 does not specifically authorize a feasibility study of community schools programs, for the committee to embark upon such a program without a study might properly be regarded as irresponsible. In Ring v. Woburn, 311 Mass. at 687, the court determined that the power to employ school janitors and custodians was necessary and implied from the express duty of the committee to care for school property. The court stated, "[I]t is a well established general rule that when a general power is given or duty enjoined, every particular

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power necessary for the exercise of the one, or the performance of the other, is given by implication."

The legislative history of that section gives further indication that city and town funding was originally contemplated for Section 71 purposes. Statute 1911, c. 367, Section 1, provided for additional uses of school property "for which no admission fee is charged." Statute 1912, c. 320, struck this language. Statute 1913, c. 391, Section 1, restored it; but by St. 1914, c. 538, Section 1, it was again struck. While there is presently no express prohibition against the charging of fees (see now G. L. c. 71, Section 71C, inserted by St. 1973, c. 800 [Note 8]), it is apparent that fees need not be charged, and there is no indication of legislative intent that activities authorized by Section 71 need be self-sufficient. We conclude that authority to conduct a feasibility study was implicit in Section 71 and that it was the obligation of the city to fund the study at the request of the committee under Section 34.

It follows from what we have said that the final decree dismissing the bill must be reversed and a final decree entered ordering the city and its officials, whose action is required to carry out that order under the provisions of G. L. c. 71, Section 34, to provide in the manner required by that section the sum of $17,000 plus twenty-five percent thereof.

So ordered.