TOWN OF MANCHESTER vs. DEPARTMENT OF ENVIRONMENTAL QUALITY ENGINEERING.

LIACOS, J. The plaintiff board of health of the town of Manchester (board) filed a complaint in the Superior Court

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in Essex County pursuant to G. L. c. 30A, Section 14, seeking relief from an order of the defendant, Commissioner of the Department of Environmental Quality Engineering. [Note 1] The order complained of directed the board to take certain action regarding its operation of a sanitary landfill dump. The Commissioner answered and counterclaimed, asserting that the board was operating the town's sanitary landfill in violation of the Solid Waste Disposal Act, G. L. c. 111, Section 150A, and the regulations pursuant thereto. On September 28, 1976, the parties agreed to the entry of an order for judgment (Order). The Order set forth the terms by which the town was to bring its dump into compliance with applicable law.

The department filed a petition for contempt on January 12, 1978, alleging that the town had failed to comply with the Order. In October, 1978, the petition for contempt was tried to a judge of the Superior Court. The judge found that the town had failed to comply with various mandates of the Order. [Note 2] He ordered the town to take action according

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to a new compliance schedule, and to pay a fine of $30,000 to the office of the Attorney General "[i]n consequence of its civil contempt."

On a motion by the town, the judge issued a revised and corrected judgment on the petition for contempt, ordering the town to pay the $30,000 fine to the clerk of courts in accordance with Superior Court Rule 22 (1954). He further directed the Attorney General, on behalf of the department, "to recommend to the Court an appropriate use or uses of the fine for the purpose of improving the natural resources of the Commonwealth in the following manner; on or by the sixtieth day after the date hereof the Department shall solicit and accept proposals from political subdivisions of the Commonwealth, other than the town, and from charitable organizations situated therein and shall recommend to the Court an award of that amount in whole or in part to such subdivision(s) and for such organization(s) whose proposal(s)

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best enhances, protects or restores a specific natural resource and/or natural resource system(s) situated within the Commonwealth." The judge indicated that he would direct the clerk of courts to pay the $30,000 to the political subdivisions or organizations which submitted the best proposals in light of the established criteria. The town's motion for relief from the revised judgment was denied; however, the town did secure a stay of the judgment pending appellate review. We transferred the case here from the Appeals Court on our own motion.

The town argues on appeal that the evidence does not support a finding of contempt. It further argues that the proceedings were in the nature of a civil rather than criminal contempt, and in a civil contempt proceeding the fine imposed should not have exceeded the actual loss to the department caused by the town's failure to comply with the order. Finally, the town argues that the judge erred in ordering a fine payable for the benefit of a department of the Commonwealth to be paid into the court for use by another political subdivision or charitable agency. The department argues that the evidence supports the judge's finding of a civil contempt; that the $30,000 fine is appropriate to remedy damage to the environment; and that the order directing the fine to be applied for the purpose of enhancing the natural resources of the Commonwealth was proper.

We note at the outset that there is not serious dispute as to whether the contempt proceeding was civil or criminal in nature. Both parties adopt the position that it was civil, and the Superior Court judge so indicated in his original and revised orders. [Note 3] Moreover, because the town did not

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receive adequate notice that a criminal contempt was involved and because the case was tried as a civil contempt proceeding, we conclude that this case should be treated as one involving civil contempt alone. See Sodones v. Sodones, 366 Mass. 121, 130 (1974), citing Parker v. United States, 153 F.2d 66 (1st Cir. 1946); In re Mann, 126 F. Supp. 709, 710 (D. Mass. 1954); Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 446 (1911). Cf. Mass. R. Crim. P. 44, 378 Mass. 920 (effective July 1, 1979).

We now consider the town's contention that the evidence does not support a finding of civil contempt. "To constitute civil contempt there must be a clear and undoubted disobedience of a clear and unequivocal command." United Factory Outlet, Inc. v. Jay's Stores, Inc., 361 Mass. 35, 36 (1972). The burden of proof was on the department to prove its case by a preponderance of the evidence. See United States Time Corp. v. G.E.M. of Boston, Inc., 345 Mass. 279, 282 (1963). The town argues that there was no "clear and undoubted disobedience" of a court order, in so far as the town was in substantial compliance with the Order. The town's allegation of substantial compliance is at odds with the judge's findings of fact. Those findings indicate that the town had failed to comply with the provisions of the Order requiring the immediate compacting and covering of all material at the dump; the hiring of a registered, professional engineer within the time specified; the development of an adequate plan for operation of the dump; and

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the implementation of such plan. [Note 4] The judge's findings of fact will not be disturbed on appeal unless they are clearly erroneous. Mass. R. Civ. P. 52 (a), 365 Mass. 816 (1974). See Labor Relations Comm'n v. Boston Teachers Local 66, 374 Mass. 79, 92 (1977).

Our review of the evidence presented below persuades us that it is sufficient to support each of the judge's findings. A senior sanitary engineer for the department testified that the banks of the sanitary landfill were left open with inadequate cover and compaction, and that the town had failed to submit operating plans within ninety days as mandated in the Order. He stated that the first plan submitted by the town on January 11, 1978, failed to conform to existing regulations. Specifically, it failed to provide for monitoring ground water conditions as mandated in the Order. The department's engineer indicated that the second plan submitted by the town also failed in this regard. Moreover, the second plan failed to set forth a proper operation schedule; it failed to provide a proper drainage scheme; it failed to provide for separation of the landfill from the surrounding wetland by means of an impervious barrier; and it failed to provide for a two-month stockpile of proper cover material at the site. A member of the town's board of health admitted that the town failed to hire a consulting registered professional engineer within thirty days as mandated in the Order of September 28, 1976, and that it had hired an engineer one year after the entry of that Order. The town's director of public works admitted at trial that the town was still not in compliance with certain of the requirements of the 1976 Order.

The town further argues that there was no "clear and undoubted disobedience" of a court order because the department's inaction constituted a tacit agreement to extend the dates for compliance set forth in the Order. [Note 5] The town

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relies on a provision of that Order which states: "The parties may by agreement, or the Court may for good cause shown, modify the dates of the compliance schedule set forth herein." The department argues that even if this court were to accept the town's theory, time for further delay was tolled on January 12, 1978, when the department filed its contempt petition. We agree with the department that despite any prior uncertainty, the department's position was clarified at the time it filed the contempt petition. Therefore, we need not decide whether there was "a constructive agreement to modify the filing dates" or whether such a "constructive agreement" would be sufficient to modify the compliance schedule set forth in the Order. In the nine months' period between the filing of the contempt petition and the trial, the town had failed to achieve substantial compliance with the order. [Note 6]

The town makes two further contentions relative to the insufficiency of the evidence to support a finding of contempt: first, that the judge's characterization of the town's conduct as "foot dragging" will not support a conclusion of law that there was "clear and undoubted disobedience"; and second, that the judge failed to make the required finding that the town was able to comply with the order within the timetable. [Note 7] As to the first contention, the judge's use of the term "foot dragging" does not detract from his other findings which support his conclusion that the town had disobeyed the court Order of September 28, 1976. The town of Manchester is a body corporate (G. L. c. 40, Section 1) and "[w]hen a corporation is charged with civil contempt for violating a court order because of the acts of its agents or

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servants, it is not necessary to show that there was wilful disobedience or intention to violate the order." United Factory Outlet, Inc. v. Jay's Stores, Inc., 361 Mass. 35, 37 (1972). As to the second contention, there was ample evidence presented which would indicate that the terms of the Order could have been substantially complied with under the timetable set forth in the Order, and certainly within the two-year period prior to trial.

We next consider the town's argument that the $30,000 fine assessed against the town was in the nature of a penalty, and as such was impermissible in the context of a civil contempt proceeding. The town is correct in its assertion that a punitive fine cannot be imposed upon a contemnor in a civil contempt proceeding. Parker v. United States, 153 F.2d 66, 71 (1st Cir. 1946). Where a fine is imposed in a civil contempt proceeding it must not exceed the actual loss to the complainant caused by the contemnor's violation of the order in the main case, plus the complainant's reasonable expenses in enforcing his rights. Id. See United States v. United Mine Workers, 330 U.S. 258, 303-304 (1947); Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 444 (1911); School Comm. of New Bedford v. Dlouhy, 360 Mass. 109, 114 (1971); Lyon v. Bloomfield, 355 Mass. 738, 744 (1969); Root v. MacDonald, 260 Mass. 344, 362 (1927). The town argues that the judge erred in imposing a $30,000 fine against the town "in consequence of its civil contempt," while making no findings on the issue of damages. We agree. It is true that "[t]he amount of a compensatory fine upon [o]ne who has disobeyed a decree' need not be measured with undue precision." Department of Pub. Health v. Cumberland Cattle Co., 361 Mass. 817, 832 (1972), citing Godard v. Babson-Dow Mfg. Co., 319 Mass. 345, 350 (1946). However, there must be some indication of the extent to which the complainant has been injured before a compensatory fine may be awarded. Department of Pub. Health v. Cumberland Cattle Co., supra, provides guidance as to how the amount of compensatory fine may be calculated

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where the complainant is an administrative agency. [Note 8] Damages also could be based on the costs of enforcement imposed on the department by the town's failure to comply with the order of court, including costs of litigation and reasonable attorne's fees.

The town further argues that the judge erred in ordering a fine payable on behalf of a department of the Commonwealth to be paid into the court for use by another political subdivision or charitable agency. The town asserts that this method of disposition of the fine would result in an unconstitutional receipt and expenditure of funds. Section 1 of art. 63 of the Amendments to the Massachusetts Constitution reads: "All money received on account of the commonwealth from any source whatsoever shall be paid into the treasury thereof." This court has expressed the view "that art. 63 was designed to place the fiscal operations of the Commonwealth as far as possible on a strict budget plan by which all money received on account of the Commonwealth from any source should be paid into its treasury and all proposed expenditures of the Commonwealth should be included in some appropriation bill." Opinion of the Justices, 334 Mass. 716, 718 (1956), citing Opinion of the Justices, 297 Mass. 577, 580-581 (1937). Baker v. Commonwealth, 312 Mass. 490, 493 (1942). The expenditure of funds by the Commonwealth is also regulated by statute. General Laws c. 29, Section 18, provides in pertinent part: "Except as otherwise provided, no money shall be paid by the commonwealth without a warrant from the governor drawn in accordance with an appropriation then in effect ...."

The department argues that the $30,000 fine is not money "received on account of the commonwealth" within the meaning of art. 63; therefore, it need not be paid into the

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treasury, nor is it subject to the appropriation power of the Legislature. We disagree. Article 63 expressly includes "all money received on account of the commonwealth from any source whatsoever" (emphasis supplied). This court has indicated that money received by the Commonwealth from fines, license fees and permit fees is " `money received on account of' the Commonwealth." See Opinion of the Justices, 334 Mass. 716, 718 (1956).

The department further argues that the fine need not be paid into the treasury and subjected to legislative appropriation because the funds are to be held by public officers and agencies under strictly prescribed conditions which amount to a "constructive trust." The department cites several cases where this court has upheld the receipt of funds by State agencies to be paid out under strictly prescribed conditions. Opinion of the Justices, 375 Mass. 851, 854 (1978). Opinion of the Justices, 349 Mass. 804, 807-811 (1965). Howes Bros. v. Unemployment Compensation Comm'n, 296 Mass. 275, 289-290, cert. denied, 300 U.S. 657 (1936). Horton v. Attorney Gen., 269 Mass. 503, 512 (1929). Dane v. Treasurer & Receiver Gen., 237 Mass. 50, 52, aff'd, 256 U.S. 589 (1921).

In Opinion of the Justices, 375 Mass. 851 (1978), cited by the department in support of its position, we stated that "legislation requiring that Federal funds, including those received in trust by officers and agencies of the executive branch, be paid into the State treasury and be expended only on appropriation by the legislative branch, would result in the Legislature's interfering with the right and obligation of the executive branch to decide the extent and manner of expending funds in performing its constitutional duty faithfully to execute and administer the laws." Id. at 854-855. In reaching this result, we explained that art. 63 did not mandate legislative appropriation of the funds. We stated: "The main functions of art. 63 are to centralize control of the Commonwealth's funds and to ensure careful consideration of expenditure of them. Opinion of the Justices, 349 Mass. 804, 807 (1965). Baker v. Commonwealth, [ 312 Mass. 940,

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943 (1942)]. Opinion of the Justices, 297 Mass. at 580. However, not all funds received by public officers or agencies of the Commonwealth are subject to the appropriation power of the Legislature. See Opinion of the Justices, 349 Mass. at 807, 810. Funds held in trust to be disbursed according to legislatively prescribed conditions are not subject to appropriation. Horton v. Attorney Gen., 269 Mass. 503 (1929). See Opinion of the Justices, 369 Mass. 990, 995 (1976) .... If Federal funds are received by State officers or agencies subject to the condition that they be used only for objects specified by Federal statues or regulations, the money is impressed with a trust and is not subject to appropriation by the Legislature. 8 Op. Att'y Gen. 191 (1926). The recipient of such funds has no choice but to comply with the requirements imposed by Federal law. See Opinion of the Justices, 368 Mass. 831, 838, 841-842 (1975)." 375 Mass. at 854.

We find the Federal reimbursement scheme distinguishable from the judge's order in the case at bar. The distinction lies in the fundamental difference between the expenditure of funds impressed with conditions prescribed by the Federal Legislature and the expenditure of funds impressed with conditions prescribed by the State judiciary. In each of the remaining cases cited by the department in support of its argument that legislative appropriation is unnecessary, the funds received by the State agency were impressed with legislatively prescribed conditions. [Note 9] Thus, the department's

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"constructive trust" argument fails for the reason that the purported trust in this case was not legislatively created. See 6 Op. Att'y Gen. 636 (1922). [Note 10]

We conclude that the judge erred in ordering the $30,000 fine payable on behalf of the department to be expended at his direction for purposes of enhancing the natural resources of the Commonwealth. [Note 11]

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So much of the judgment as finds the town in civil contempt is affirmed. The balance of the judgment is reversed, and the case is remanded to the Superior Court for further proceedings on the issue of damages. The disposition of damages, if any, shall be made in a manner consistent with this opinion.

So ordered