JOHN F. CASEY & others vs. CITY OF EVERETT.

SPALDING, J. This is a petition in equity brought by more than ten taxable inhabitants of the respondent under G. L. (Ter. Ed.) c. 71, Section 34, as appearing in St. 1939, c. 294.

The judge made a report of material facts which we summarize as follows: The school committee of Everett submitted to the mayor an itemized estimate of the amounts deemed necessary for the support of the schools for the year 1952, the total of which was $1,841,221. The mayor thereafter transmitted to the city council a recommendation that $1,706,040.41 be appropriated for this purpose, and the council appropriated this amount. The sum so appropriated was less by $135,180.59 than the estimates submitted by the school committee. An additional appropriation of $35,000, however, reduced the amount of this discrepancy

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to $100,180.59 and a deficiency in that amount was determined by the judge. From a decree ordering the respondent to provide, by borrowing, the amount of this deficiency together with a sum equal to twenty-five per cent thereof, the respondent appealed. The evidence is not reported.

The sole question presented is whether G. L. (Ter. Ed.) c. 71, Section 34, is controlling. [Note p221-1] The respondent contends that certain provisions of its special charter (St. 1892, c. 3552) exempt it from the requirement imposed by Section 34 "annually [to] provide an amount of money sufficient for the support of the public schools as required by this chapter." The provisions relied upon require in substance that the school committee's requests for appropriations be passed upon by the mayor, who "shall recommend such appropriations as he shall deem necessary"; that the school committee shall incur no liability in excess of the amount appropriated for

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its use by the city council "Unless thereto required by law"; and that the acts of the school committee involving the expenditure of money shall be passed upon by the mayor in the same manner as acts of the city council.

The petitioners, on the other hand, rely upon the Commonwealth's long standing policy with respect to the support and maintenance of the public schools, of which G. L. (Ter. Ed.) c. 71, Section 34, as appearing in St. 1939, c. 294, is the current manifestation. That policy, with the exception of the sanctions for its enforcement, has remained unchanged since 1647. [Note 222p-1] In broad terms it may be stated as a determination by the Legislature that the maintenance of adequate public schools is of paramount importance. Since the enactment of St. 1826, c. 143, Section 5, each city and town has been required to elect a school committee to manage the public schools, and to these committees the Legislature has given substantially final authority to decide upon the needs of the school systems in their charge. See Leonard v. School Committee of Springfield, 241 Mass. 325, 328-330.

This is not the first occasion of an apparent conflict between the duties imposed upon a school committee by G. L. (Ter. Ed.) c. 71 and the limitations placed upon municipal expenditures by charter or by the municipal finance act, G. L. (Ter. Ed.) c. 44. See, for example, Watt v. Chelmsford, 323 Mass. 697; Attorney General v. Woburn, 317 Mass. 465; O'Brien v. Pittsfield, 316 Mass. 283; Hayes v. Brockton, 313 Mass. 641; Ring v. Woburn, 311 Mass. 679; Callahan v. Woburn, 306 Mass. 265; School Committee of Lowell v. Mayor of Lowell, 265 Mass. 353; Decatur v. Auditor of Peabody, 251 Mass. 82; Leonard v. School Committee of Springfield, 241 Mass. 325. In each of those cases this court recognized, and where possible enforced, the supremacy of the school committee's authority in matters pertaining to the management of the public schools.

The respondent seeks to differentiate this case from those

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just cited on the basis of the authority given to the mayor in Section 49 of its charter to transmit the school committee's request for appropriations to the city council and to "recommend such appropriations as he shall deem necessary." The argument in substance is this: In the above mentioned cases the power of the mayor to recommend appropriations was given in general terms comparable to the provisions of G. L. (Ter. Ed.) c. 44. Those provisions, admittedly, do not impinge upon G. L. (Ter. Ed.) c. 71, Section 34. But here the general provisions are supplemented by the precise language of Section 49 which is specifically applicable to the school committee's requests for appropriations.

This argument is not persuasive. The procedure generally prevailing in cities and towns is that the school committee submits its requests for appropriations to some body or official charged with the duty of passing upon the appropriation of public funds. 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. In no other way could a deficiency in the "amount necessary . . . for the support of public schools" come about. It is true, as the respondent argues, that Section 49 of the charter applies in terms to the school committee, and that it gives to the mayor the authority to "recommend such appropriations as he shall deem necessary." The provision upon which the respondent relies, aside from its specific applicability to the school committee, differs in no significant particular from the general grant of a similar authority to the mayor in Section 32 of the charter. [Note 223p-1] Nor does Section 49 differ materially from G. L. (Ter. Ed.) c. 44, Section 32, as appearing in St. 1941,

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c. 473, Section 2, [Note 224p-1] which gives to the mayors of all cities except Boston authority similar to that granted by Section 32 of the charter before us. It is well settled that despite the importance and the broad sweep of G. L. (Ter. Ed.) c. 44, which regulates municipal finance, Section 32 of that chapter does not deprive school committees of the final authority to determine the financial needs of the public schools. Leonard v. School Committee of Springfield, 241 Mass. 325, 331-332. Decatur v. Auditor of Peabody, 251 Mass. 82, 87-89. See Callahan v. Woburn, 306 Mass. 265, 270, 273; Hayes v. Brockton, 313 Mass. 641, 649-650. Beyond the point stressed by the respondent, nothing in the city's charter supports the contention that Section 49 thereof was intended to deprive the public schools of the city of Everett of the protection of G. L. (Ter. Ed.) c. 71 or to permit the mayor and city council to ignore the basic standards there set out for the maintenance of public school systems throughout the Commonwealth. The charter itself, in Sections 48 and 50, recognizes that the school committee's powers and duties are those imposed by general law; these, in a sense, are incorporated by reference. We are, accordingly, of opinion that the bare reiteration in Section 49 of the respondent's charter of a power probably contained in Section 32 thereof does not have the effect of cutting down the traditional and well established power of the school committee. We hold, therefore, that the provisions of Section 49 of the respondent's charter do not preclude the petitioners from invoking the remedy afforded by G. L. (Ter. Ed.) c. 71, Section 34.

We recognize, as the respondent points out, that statutory limitations may be, and have been, imposed upon the powers or duties of a school committee. School Committee of Gloucester v. Gloucester, 324 Mass. 209, 216. But this court has consistently sought such limitations in express language, Leonard v. School Committee of Springfield, 241 Mass. 325,

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331-332, or has restricted the operation of an implicit limitation so as to avoid interference "in the traditional supremacy of the school committee in the field of education . . .." School Committee of Gloucester v. Gloucester, 324 Mass. 209, 218, 220. Nor is the reliance of the respondent upon Gorman v. Peabody, 312 Mass. 560, well founded. There a petition under G. L. (Ter. Ed.) c. 71, Section 34, was dismissed because the city charter made special provision for submission of "any measure" passed by the school committee to popular vote. Spec. St. 1916, c. 300, Section 48. That provision, substantially identical with G. L. (Ter. Ed.) c. 43, Section 42, was held to supersede G. L. (Ter. Ed.) c. 71, Section 34. Compare, however, Hayes v. Brockton, 313 Mass. 641, and Decatur v. Auditor of Peabody, 251 Mass. 82. In the respondent's charter there is no comparable provision whereby the acts of the school committee may be referred to the electorate for approval or disapproval. The power granted to the mayor in Section 49 of the respondent's charter is not, in contradistinction to the provisions in the Peabody charter and in the "plan" charters contained in G. L. (Ter. Ed.) c. 43, a manifestation of the "home rule" policy discussed in the Gorman case. It cannot be said, therefore, that disapproval by the mayor of proposed expenditures for school purposes stands on the same footing as disapproval by a majority of the voters at a popular election.

No contention is made that the amount of the deficiency determined by the judge was improper, if Section 34 was applicable, and we have considered the case on that footing. The final decree is affirmed with costs of this appeal.

So ordered.