BOARD OF EDUCATION & others [Note 1] vs. ASSESSOR OF WORCESTER & others. [Note 2]

TAURO, C.J. This is an action for declaratory relief brought pursuant to G. L. c. 231A wherein the Board of Education (board) seeks to have the obligations of the treasurer and assessor of Worcester declared with regard to monies appropriated by St. 1974, c. 431, Sections 2 and 24, for special education programs. [Note 3] The board also seeks an order compelling the city to furnish certain monies so appropriated to the treasurer to be held as a separate special education account. The matter was heard by a single justice of this court, who reserved and reported it to the full court.

Briefly, the facts are these: St. 1974, c. 431, allocated $983,322 to the city of Worcester for implementation of St. 1972, c. 766. Prior to that time, the Worcester school committee (committee) budgeted $2,366,000 for special education, of which $268,541 was for new and expanded programs to implement c. 766. After being advised by

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the Department of Education that the entire $983,322 was to be spent for new programs, the committee made additional financial commitments for new and expanded programs.

The city treasurer, on receipt of a check for $983,322, was advised by the Worcester school department that the money should be deposited in a separate special education account. However, the money was used instead, on advice of the assessor, to reduce the tax rate for the 1975 fiscal year, and was not placed in a special education account.

The issue thus presented is whether monies allocated by St. 1974, c. 431, for implementation of St. 1972, c. 766, must be spent for new and expanded programs over and above those supported in prior years, or whether such monies may be used to reduce the tax rate where the total special education budget of a particular city exceeds the amount so allocated. We hold that the clear intent of c. 431 is that funds allocated thereby are to be spent only for new and expanded programs to implement c. 766.

In construing statutes, "[t]he general and familiar rule is that a statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated." Industrial Fin. Corp. v. State Tax Comm. 367 Mass. 360, 364 (1975), quoting from Hanlon v. Rollins, 286 Mass. 444, 447 (1934). Accord, Lincoln-Sudbury Regional Sch. Dist. v. Brandt-Jordan Corp. of New Bedford, 356 Mass. 114, 117-118 (1969). See Interstate Engr. Corp. v. Fitchburg, 367 Mass. 751, 757 (1975). Additionally, where two or more statutes relate to the same subject matter, they should be construed together so as to constitute

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a harmonious whole consistent with the legislative purpose. Hardman v. Collector of Taxes of No. Adams, 317 Mass. 439, 442 (1945). School Comm. of Gloucester v. Gloucester, 324 Mass. 209, 212 (1949). Mathewson v. Contributory Retirement Appeal Bd. 335 Mass. 610 (1957). See Sands, Sutherland Statutory Construction, Section 51.01 (4th ed. 1973). Thus, in determining how the monies allocated by c. 431 may be spent, we must examine that statute with regard to its history as well as with reference to c. 766 and its underlying purposes.

The legislative purpose in enacting St. 1972, c. 766, is clear. Section 1 of the statute states in part, "it is the purposes of this act to provide for a flexible and uniform system of special education program opportunities for all children requiring special education; to provide a flexible and nondiscriminatory system for identifying and evaluating the individual needs of children requiring special education; . . . and to prevent denials of equal educational opportunity . . . in the provision of differential educational services."

The Legislature recognized that the act was necessary "to remedy past inadequacies and inequities," and that this could be done "by defining the needs of children requiring special education in a broad and flexible manner." St. 1972, c. 76, Section 1. While c. 766 incorporated what had been fragmented attempts to deal with special education needs, and in doing so repealed the prior sections, [Note 4] it is clear that the overriding purpose of the legislation was to initiate new and innovative special education programs with expanded screening and evaluation procedures and more realistic placement alternatives. G. L. c. 71B, Sections 1-4.

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The Legislature recognized, however, "that professional services and resources must be made available to cities, towns and regional school districts . . . if this act is to be implemented successfully" (c. 766, Section 1), and, with this in mind, enacted St. 1974, c. 431, Sections 2 and 24. As stated, that statute provided funds "[i]n order to meet the costs to be incurred . . . in the implementation of . . . [c. 766]."

The defendant herein argues that, since the newly enacted c. 766 incorporates former provisions for special education programs, funds allocated by c. 431 may be used to reduce the tax rate in Worcester since that city's total special education budget exceeds the amount of its grant. The defendant further contends that a logical reading of c. 431 does not limit the grant to new and expanded programs. We do not find this analysis persuasive.

The entire thrust of c. 766 is the establishment of a comprehensive and complete program of evaluation and placement for children with special education needs. The statute takes a completely novel and innovative approach toward evaluating the needs of, and providing necessary services for, these children. The hallmark of the statute is its creativity and the new and expanded programs it provides. These innovative programs have become synonymous with c. 766 itself. Thus, we believe that the money allocated for implementation of c. 766 was meant for use only on these newly conceived and expanded programs, and not for use in the mere continuation of special education programs existing in the past.

Two additional factors support this conclusion. The application and interpretation of statutes by the agency charged with their enforcement, although not binding on us, is entitled to our consideration. Assessors of Holyoke v. State Tax Commn. 355 Mass. 223, 243-244 (1969). Town Crier, Inc. v. Chief of Police of Weston, 361 Mass. 682, 687, fn. 6 (1972). School Comm. of Springfield v.

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Board of Educ. 362 Mass. 417, 441, fn. 22 (1972). Devlin v. Commissioner of Correction, 364 Mass. 435, 439 (1973). "The appropriate weight [of such interpretation], in a particular case, will depend on a variety of factors, including whether the agency participated in the drafting of the legislation (Zuber v. Allen, 396 U.S. 168, 192 [1969]), whether the interpretation dates from the enactment of the legislation, and whether it has been consistently applied (Cleary v. Cardullo's, Inc. 347 Mass. 337, 343-344 [1964])." School Comm. of Springfield v. Board of Educ., supra. In the instant case, the Department of Education sent a memorandum to local superintendents of schools shortly after enactment of St. 1974, c. 431, embodying its interpretation thereof. The department, which had been closely involved with the new legislation, interpreted c. 431 as providing funds "to support special education programs over and above those supported during the 1973-1974 school year," and thus as applying only to new programs. [Note 5] The department has consistently adhered to this view, and although not of long standing, we believe this interpretation is entitled to some weight. Devlin v. Commissioner of Correction, supra.

Even more persuasive is a report prepared by the office of the Secretary of Education entitled "Projected Initial Cost of Chapter 766." This study was undertaken to determine how much local education agencies could expect implementation of St. 1972, c. 766, to cost in its initial year. It determined that an increase in special education costs of $40,000,000 could be estimated for the 1975 fiscal year, of which $14,000,000 reflected anticipated

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growth of existing programs. Thus, the report concluded that "$26 million represents expected additional costs of Chapter 766" (emphasis added). [Note 6]

This report was used by the Legislature in deriving the $26,000,000 figure for insertion into line item number 7028-0304 in place of the $9,000,000 recommended by the Governor. As such, it "comprise[s] a most instructive source for information indicative of what the legislature intended . . . [the statute] to mean." Sands, Sutherland Statutory Construction, Section 48.04 (4th ed. 1973). The obvious import of this report is that the money allocated by c. 431 is to be used for new and expanded programs only. It was not intended as a reimbursement for past expenditures on special education programs, and certainly was not meant to reduce the tax rate in the circumstances of this case.

In light of what we have said, a judgment is to enter (a) declaring that the moneys appropriated by St. 1974, c. 431, Sections 2 and 24, are to be used only for the implementation of new and expanded programs in compliance with St. 1972, c. 766, and (b) ordering that the portion of the funds allocated to the city of Worcester not already budgeted by the school committee for new and expanded programs, in this case $714, 781, be returned to the city treasurer for deposit in a separate special education account.

So ordered.