JAMES J. COTTER & others vs. CITY OF CHELSEA.

QUA, C.J. This is a petition by ten or more taxable inhabitants of the city under G. L. (Ter. Ed.) c. 71, Section 34, as appearing in St. 1939, c. 294, to require the city to provide a sum of money (plus twenty-five per cent thereof) equal to an alleged "deficiency" resulting from the failure of the city to appropriate for public schools in 1950 the full amount estimated and requested by the school committee. The case was presented to the Superior Court on a statement of agreed facts, and was reserved and reported without decision.

On November 25, 1947, the school committee voted "that all married teachers who are the sole support of his own wife, her own husband or his or her own children under eighteen years of age be granted a dependency allowance of $300 per annum." The principal question presented is whether this vote was valid, so that the city was obliged to appropriate a sum sufficient to cover the so called allowances. The city had previously accepted the "equal pay law," G. L. (Ter. Ed.) c. 71, Section 40. This section as appearing in St. 1949, c. 684, contained these provisions, "Women teachers employed in the same grades and doing the same type of work with the same preparation and training as men teachers shall be paid at the same rate as men teachers. Such equal pay shall not be effected by reducing the pay of men teachers." [Note p315-1] In 1950 there were in Chelsea two hundred thirty day school teachers of whom seventy-one were men and one hundred fifty-nine were women. Under the vote of the committee sixty-five men and five women would be entitled to the "dependency allowance." [Note p315-2]

The city has argued that this "dependency allowance"

Page 316

was a mere gift. We do not think so. It was not intended as a single payment for services previously rendered. It was evidently intended as a permanent future increase in the salaries of those entitled to it as a part of the compensation for their work. It was actually paid to them for more than two years before the city refused the necessary appropriation for the year 1950. It had fewer of the elements of a gift than did the so called "bonus" held valid in Attorney General v. Woburn, 317 Mass. 465, or the pay for "sick leave" held valid in Averell v. Newburyport, 241 Mass. 333, and in Quinlan v. Cambridge, 320 Mass. 124, or the vacation pay held valid in Wood v. Haverhill, 174 Mass. 578. Compare Whittaker v. Salem, 216 Mass. 483. See Friend v. Gilbert, 108 Mass. 408; Selectmen of Brookline v. Allen 325 Mass. 482, 485-486.

It is also argued that the vote violates the "equal pay law." We do not see that it does. We think that this statute must be construed in the light of its obvious purpose, which was to secure general equality between men and women teachers in the matter of pay. We do not think that it was intended to prevent differentiation among teachers based upon classifications which the school committee could reasonably and lawfully make, whether or not based upon grade, type of work, and preparation and training, so long as they were not discriminatory between the sexes. It does not mean that every woman teacher must necessarily receive the same pay as every man teacher, even if doing the same type of work in the same grade with the same preparation and training without regard to any other consideration, any more than it means that every woman teacher must necessarily receive the same pay as every other woman teacher in the same circumstances. If the statute meant that committees could take into account nothing but the three factors mentioned in the statute, its practical effect would be to forbid them to make any salary differences based upon such important factors as demonstrated ability to teach, "capacity for the government of schools" (G. L. [Ter. Ed.] c. 71, Section 38), and other important factors, and so

Page 317

would cut down the committees' freedom of action in matters having nothing to do with sex. See School District No. 10 in Uxbridge v. Mowry, 9 Allen 94; Board of School Trustees v. Moore, 218 Ind. 386; Morris v. Williams, 149 Fed. (2d) 703, 708. We do not think that the vote here in question does discriminate between the sexes. It does directly affect more men than women, but this must be because there are more married men teachers with dependents than there are married women teachers with dependents. Married women teachers with dependents, of whom there are a few, do share in the benefit on an exact level with the men. This view seems to be substantially the same as that expressed in relation to a similar statute in Liva v. Board of Education of Lyndhurst, 126 N. J. L. 221. See Moses v. Board of Education of Syracuse, 245 N. Y. 106.

We are now brought to the question whether the school committee had power to classify any teachers as to compensation with relation to their having or not having persons dependent upon them for support. School committees have "general charge" of public schools and undoubtedly have full power to make reasonable and proper contracts with teachers and to fix their pay. G. L. (Ter. Ed.) c. 71, Sections 37, 38. Batchelder v. Salem, 4 Cush. 599. Watt v. Chelmsford, 323 Mass. 697, 700, and cases cited. Attorney General v. Ware, 328 Mass. 18, 20. But, as with other boards charged with the performance of public functions, all of their acts must be within the authority committed to them and must bear some rational relation to the furthering of the objects for which the board exists. Quinlan v. Cambridge, 320 Mass. 124, 130-131. Kinzer v. Directors of the Independent School District of Marion, 129 Iowa, 441, 444, 445. When a public board sets up standards of pay not directly related to the work performed but varying with the private personal status of the employee it is treading upon dangerous ground. See Houghton v. School Committee of Somerville, 306 Mass. 542, 544. School committees are not charged with the task of ironing out the inequalities of life or setting up systems of social welfare. If the vote is to

Page 318

be held valid it must be because the committee could reasonably believe that it would be for the good of the school system to pay more for teachers having dependents. In Rinaldo v. School Committee of Revere, 294 Mass. 167, we held, following Sheldon v. School Committee of Hopedale, 276 Mass. 230, that a school committee could exclude married women from its teaching force, but that decision rested upon special grounds, including the existence of a widely held belief that it was better for the schools that married women should not teach in them. To the same effect is Houghton v. School Committee of Somerville, 306 Mass. 542. See Coleman v. School District of Rochester, 87 N. H. 465, 471-472. In Opinion of the Justices, 303 Mass. 631, at pages 646-650, 656, all of the justices concluded that the exclusion from public employment generally of married women as a class in favor of unmarried women as a class could not reasonably be supported either upon the ground of any difference in qualifications or upon any other proper ground and was unconstitutional; and at pages 650-651, 653-654, 655, a majority of the justices concluded that the exclusion from public employment generally of married women whose husbands were bound to support them and were able to do so was likewise unconstitutional. A few years later these conclusions were incorporated into the decision of the court in Mayor of Somerville v. District Court of Somerville, 317 Mass. 106.

On the other hand, the court should be slow to decide that a public board has acted unreasonably or arbitrarily. The court should cast about to discover, if possible, some ground which reasonable men might deem proper on which the action can rest. And in the case before us there has been no attempt wholly to exclude any class of persons from employment as teachers. It is simply a question whether making the amount of salary depend to some small extent upon the situation of the teacher with respect to dependents can be thought by a reasonable school committeeman to have some effect in producing more efficient schools. On the whole, we incline to the view that the vote can be

Page 319

sustained. It is not that married teachers with dependents are for that reason likely to be better teachers than other persons -- a proposition which it might be difficult to maintain. Rather the reason is that in a time when many consider the teaching profession underpaid as compared to the rising cost of living, but when, nevertheless, there is great resistance to increased municipal tax rates, and when therefore the securing of the most competent teachers for the public schools has become a considerable problem, of the existence of which the court may take judicial notice (see Chartrand v. Chartrand, 295 Mass. 293, 295; Howes Brothers Co. v. Unemployment Compensation Commission, 296 Mass. 275, 291; Assessors of West Springfield v. Eastern States Exposition, 326 Mass. 167, 170), it may be thought with some justification that the more mature, experienced, and competent teachers are those most likely to be married and to have dependents, and that some recognition of the additional burden which such teachers carry will have some effect in the long run in securing and in retaining for the public schools the services of teachers of that type. Whether in fairness unmarried teachers with dependents ought to have been included in the vote we think was a matter for the school committee to decide. We are not quite prepared to say that failure to include them renders the entire vote invalid. Liva v. Board of Education of Lyndhurst, 126 N. J. L. 221, 224. See Phelps v. Board of Education of West New York, 300 U.S. 319, 323-324. Compare Hutton v. Gill, 212 Ind. 164.

It is not to be assumed that in going as far as we have in supporting this slight incursion by the school committee, in conditions now known to exist, into the field of domestic economy we would support further or different incursions.

The city seems to raise a question as to the status of the superintendent of schools and the attendance officer for both of whom an "allowance" was apparently included in the estimates and request for appropriation of the school committee, although they may not have been "teachers" within the meaning of the vote hereinbefore quoted. If we

Page 320

assume that these persons were not teachers, we are nevertheless of opinion that the school committee could include them in the system of "allowances" by including a sum to pay such "allowances" in their estimates and request for appropriation. Ring v. Woburn, 311 Mass. 679. O'Brien v. Pittsfield, 316 Mass. 283, 285-287.

The city concedes that, if the vote of the committee is valid, the amount of the deficiency is $32,816.50. [Note p320-1] A decree is to be entered in favor of the petitioners requiring the city to provide that sum or such part thereof as shall not already have been provided, together with a sum equal to twenty-five per cent thereof, all in accordance with the provisions of G. L. (Ter. Ed.) c. 71, Section 34, as appearing in St. 1939, c. 294.

So ordered.