GEORGE R. GRAVES & others vs. TOWN OF FAIRHAVEN.

WILKINS, C.J. This is a petition by more than ten taxpayers to determine the amount of the deficiency in the appropriation by the respondent town for the support of the public schools for the year 1957. G. L. c. 71, Section 34, as amended through St. 1939, c. 294. The judge found that there was a deficiency of $11,497.96, and entered a decree which ordered the town, its treasurer, selectmen, and assessors to provide, by borrowing, this sum, together with the further sum of $2,874.49, representing twenty-five per cent of the amount of the deficiency. The town appealed. There are findings of fact and a report of the evidence.

On or about January 10, 1957, the school committee submitted "its budget for school purposes" to the town finance committee. The appropriation sought was $536,836.45 plus receipts from the county dog fund. The two committees held various joint conferences, but there was no evidence of any report as to the school budget to the limited town meeting by the finance committee or by the board of selectmen. G. L. c. 41, Sections 59, 60.

On February 28, 1957, the school committee voted to amend its request as follows: "The school committee requests that the town raise and appropriate the sum of $539,863.96 for school purposes, including $200 for out-of-state

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travel; and that receipts from the Bristol County dog fund, $2,222.49, be appropriated also for school purposes." This amended request was never formally presented in writing to the finance committee. [Note p292-1]

At the annual town meeting on March 9, 1957, a motion in accordance with the school committee's amended request was defeated. The record of the meeting contains the statement: "Voted the appropriation of $525,000 for school purposes, $200 of which is for out-of-state travel, plus the appropriation of $2,222.49 received from the dog fund. . .." On these figures the reduction was $11,836.45. [Note p292-2]

Among the items of the budget were transportation $29,900, lunchrooms $2,440, and driver education $1,700. By G. L. c. 40, Section 4, a municipality may make contracts for the furnishing of transportation of school children, and subject to certain restrictions such contracts may be made by the school committee. Transportation does not fall within the mandatory support of schools enforceable under c. 71, Section 34. Eastern Mass. St. Ry. v. Mayor of Fall River, 308 Mass. 232. Ring v. Woburn, 311 Mass. 679, 685, 688-689. See Quinn v. School Comm. of Plymouth, 332 Mass. 410, 412.

The items for lunchrooms and driver education, we think, do fall within c. 71, Section 34. By c. 71, Section 72, the school committee has power to "prepare and sell lunches at one or more school buildings for the pupils and teachers of the public schools at such prices as it deems reasonable." By c. 71, Section 4, the school committee is empowered to "give instruction in such subjects as" it "considers expedient." Driver education could be considered such a subject.

The judge, after correctly ruling with respect to these three items, stated that the vote at the town meeting which was expressed in general terms resulted in an "across the board"

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reduction in the budget. The town contends that this was a finding without support in the evidence. We think that it was a ruling, and that it was correct, although the judge did not apply it in computing the deficiency. The proper effect of that ruling is that the transportation item was reduced that proportionate part of the total reduction of $11,836.45 which $29,900, the transportation item, bore to $539,058.94, the total amount requested. This is $656.53, and this sum should be deducted in computing the deficiency.

The town asks us to review "the entire statute," c. 71, Section 34, as amended. If this is an argument that we should overrule the long line of cases of which Leonard v. School Comm. of Springfield, 241 Mass. 325, is an example, and of which the most recent are Lynch v. Fall River, 336 Mass. 558, and Illig v. Plymouth, 337 Mass. 239, the challenge comes much too late. Thus, we read in the town's brief, "In order to arrive at any figure constituting a `deficiency' within the meaning of the act, the court below was required to have before it evidence of the amount necessary to support the public schools for the year in question and evidence that the appropriations made and included in the annual budget were insufficient to meet that figure." This reads like an attempt to impair the traditional supremacy of the school committee in the field of education, and must be rejected. The cases relied upon, Ring v. Woburn, 311 Mass. 679, and Watt v. Chelmsford, 323 Mass. 697, are among many authorities to the contrary. See, for example, Morse v. Ashley, 193 Mass. 294; Decatur v. Auditor of Peabody, 251 Mass. 82; Callahan v. Woburn, 306 Mass. 265.

An argument was made by the town in the court below, and is renewed here, based upon the fact that no itemized "breakdown" was given the town meeting. The judge ruled that G. L. c. 44, Section 31A, requiring municipal department heads in cities to submit detailed estimates for the ensuing year by December first, did not apply to the school committee. Hayes v. Brockton, 313 Mass. 641, 649. Young v. Worcester, 333 Mass. 724, 726. Lynch v. Fall River, 336 Mass. 558, 559. Similarly, compliance by the school committee

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of a town with G. L. c. 41, Section 59, as amended through St. 1936, c. 94, [Note p294-1] is not a condition precedent to relief under G. L. c. 71, Section 34. Illig v. Plymouth, 337 Mass. 239. The judge found that the submission of the budget to the finance committee on January 10 caused no inconvenience, and that "no inconvenience has been claimed." He then ruled that there was "no further duty" upon the school committee, and that any failure to inform the town meeting was chargeable to the finance committee or the board of selectmen. G. L. c. 39, Section 16; c. 41, Section 60. He also pointed out, citing Attorney Gen. v. Ware, 328 Mass. 18, 20, that the finance committee could have removed the transportation item from the budget and had it considered under a separate article in the warrant with a separate appropriation.

The town seems to question the good faith "in the technical sense" of the school committee. That is not a material issue. Downey v. School Comm. of Lowell, 305 Mass. 329, 332. Kelley v. School Comm. of Watertown, 330 Mass. 150, 154. Povey v. School Comm. of Medford, 333 Mass. 70, 72-73.

The final decree is to be modified by deducting from the deficiency of $11,497.96, as found by the judge, the sum of $656.53, leaving $10,841.43, and by deducting from the further sum of $2,874.49 twenty-five per cent of $656.53, or $164.13, leaving $2,710.36, and as so modified, it is affirmed.

So ordered.