SCHOOL COMMITTEE OF BOSTON & others [Note 1] vs. CITY OF BOSTON & others. [Note 2]

LIACOS, J. This case involves a dispute over the funding of programs for special education in the city of Boston. At issue is whether the city's obligation under G. L. c. 71B, Section 5, to provide funding for special education is limited by the Boston public school financing scheme set forth in St. 1936, c. 224, as amended. The case was argued before the full court on February 4, 1981, and on February 12, 1981, we ordered entry of the following partial summary judgment: "The City of Boston and its financial officers are not required, under G. L. c. 71B, Section 5, to provide funding for special needs programs in addition to the funds appropriated under St. 1936, c. 224, as amended. The obligation to provide and allocate funding for special needs programs is subject to the limitations on school funding for the City of Boston contained in St. 1936, c. 224, as amended." This opinion is in explanation of that order.

1. Proceedings. On October 10, 1980, the plaintiffs filed a complaint in the Superior Court seeking relief pursuant to G. L. c. 71, Section 34; G. L. c. 71B, Section 5; and G. L. c. 231A. The plaintiffs alleged that the defendants (city) had failed to appropriate for fiscal year 1981 the amounts necessary for the support of Boston's special education programs and sought an order requiring the city to appropriate $46,145,272 in supplemental funds, plus an additional 25% of this amount. G. L. c. 71, Section 34. The plaintiffs also asked the court to declare that the city of Boston is required under the provisions of G. L. c. 71B, inserted by St. 1972, c. 766, to provide funding for special needs programs; that this obligation supersedes the St. 1936, c. 224, limitation on school committee

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appropriations in the city of Boston; that the mayor is required to submit requests for supplemental special education funds to the city council and may not veto such appropriations approved by the council; and that the council is required to make such appropriations.

The city filed an answer and a counterclaim in which it asked the court to enjoin the school committee from spending in excess of its St. 1936, c. 224, appropriation. [Note 3] On November 7, 1980, the plaintiffs moved for partial summary judgment on their prayers for declaratory relief. The city then moved for summary judgment on the plaintiffs' claims and for partial summary judgment on its counterclaim.

On December 3, 1980, a Superior Court judge granted the plaintiffs' motion for partial summary judgment, declaring that the city was required under G. L. c. 71B, Section 5, to provide funding for special needs programs in addition to the funds appropriated by the school committee under St. 1936, c. 224, but did not specify the amount to be provided. The trial judge reported the case to the Appeals Court pursuant to Mass. R. Civ. P. 64, 365 Mass. 831 (1974), and we allowed the city's assented to application for direct appellate review.

2. Facts. The parties submitted the case to the trial judge on a stipulation of facts, which we summarize. On April 29, 1980, the Boston school committee appropriated $195,220,920 as its St. 1936, c. 224, appropriation for fiscal 1981. [Note 4] On or about July 18, 1980, the school committee

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submitted its preliminary budget for fiscal year 1981 to the city. This preliminary budget totaled $227,697,844. [Note 5] On August 29, 1980, the school committee voted to request supplemental appropriations of $40,700,000, [Note 6] for a total general school purposes budget of $231,170,722. [Note 7] Of the requested supplemental appropriations, $7,100,000 was earmarked for special needs programs.

Contrary to his practice in previous years, [Note 8] the mayor refused to submit the requests for supplemental appropriations to the city council. On September 30, 1980, the

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school committee by a 3-1-1 vote decided to allocate all of its $195,220,920 charter appropriation to general education. The committee determined that an extra $46,145,272 was needed for special education and instructed the superintendent to demand that the mayor submit a supplemental appropriation in this amount to the city council. The superintendent sent the mayor a letter that day, demanding that the mayor submit a supplemental appropriation of $46,145,272 to the city council and asserting that the school committee was entitled to the appropriation under the provisions of St. 1972, c. 766 (commonly known as "c. 766"). The mayor did not respond in writing to this letter, and on October 10, 1980, the plaintiffs filed the instant action.

3. Jurisdiction. The plaintiffs bring this action pursuant to G. L. c. 71, Section 34, G. L. c. 71B, Section 5, and G. L. c. 231A. Although we hold that the plaintiffs may not maintain this action under G. L. c. 71, Section 34, or G. L. c. 71B, Section 5, we agree with the trial judge that the parties are entitled to a declaration of the respective rights of the school committee and city officials concerning the funding of special needs programs. We believe that in this case "involving questions of pressing public importance we should indicate our views where a vista of avoidable litigation among administrative officials is disclosed and the issues have been fully argued." School Comm. of Boston v. Board of Educ., 352 Mass. 693, 697 (1967), appeal dismissed, 389 U.S. 572 (1968). The case presents an important public question and its resolution will affect many besides the immediate litigants; it also reduces to a matter of statutory interpretation, not dependent on the present facts. Department of Community Affairs v. Massachusetts State College Bldg. Auth., 378 Mass. 418, 424 (1979); Lahey Clinic Foundation, Inc. v. Health Facilities Appeals Bd., 376 Mass. 359, 371-372 (1978). But see Litton Business Syss., Inc. v. Commissioner of Revenue, ante 619 (1981) (where plaintiffs' ten-taxpayer action jurisdictionally defective, declaratory relief unavailable absent special circumstances).

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4. G. L. c. 71, Section 34. The plaintiffs purport to bring this action pursuant to G. L. c. 71, Section 34, [Note 9] seeking to compel the city to appropriate funds in excess of the amount the school committee is authorized to appropriate directly under St. 1936, c. 224. The defendants allege that the ten-taxpayer remedy provided in G. L. c. 71, Section 34, is inapplicable to the city of Boston and that this case is controlled by our decision in Pirrone v. Boston, 364 Mass. 403 (1973). We agree.

In Pirrone, we held that the unique Boston public school financing system set forth in St. 1936, c. 224, is incompatible with the remedy provided by G. L. c. 71, Section 34. Our decision was based on a review of the historical development of the special legislation applicable to school financing in Boston and a consideration of the purpose of G. L. c. 71, Section 34.

Under St. 1936, c. 224, as amended, the school committee is empowered to appropriate funds for general school purposes up to a certain limit -- "essentially, an amount equal to the amount of funds which was required to finance the school system in the preceding year." Pirrone v. Boston, supra at 409. If the committee requires additional funds, it

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must ask the mayor to submit a request for a supplemental appropriation to the city council. Id. See Boston Teachers Local 66 v. Boston, 382 Mass. 553, 558-559 (1981); Boston Teachers Local 66 v. School Comm. of Boston, 370 Mass. 455, 472 (1976). However, under St. 1909, c. 486, Section 3, the mayor may decline to make such a submission, provided the request is not for an amount needed to fund executed collective bargaining agreements. Boston Teachers Local 66 v. School Comm. of Boston, supra at 472, 474. Boston Teachers Local 66 v. Boston, supra at 558-560.

This scheme gives the Boston school committee less budgetary control than school committees in other cities and towns, which have the authority to determine the financial needs of the public schools. [Note 10] Amherst-Pelham Regional School Comm. v. Department of Educ., 376 Mass. 480, 494-495 (1978). Pirrone v. Boston, supra at 406. Nevertheless, we have determined that it represents a reasoned attempt on the part of the Legislature to balance the responsibilities of the school committee and the city officials responsible for Boston's financial condition. Id. at 409-410.

To allow the plaintiffs in the present case to compel appropriation in excess of that authorized by St. 1936, c. 224, would be to negate the Legislature's statutory limit on the Boston school committee's appropriating power. The plaintiffs have no cause of action under G. L. c. 71, Section 34, because that section was designed to protect school committee budgetary autonomy in cities and towns other than the city of Boston. Pirrone v. Boston, supra at 412. Casey v. Everett, 330 Mass. 220, 222 (1953). Since such school committee autonomy does not exist in Boston, and has not existed since 1898, Pirrone v. Boston, supra at 411-412, G. L. c. 71, Section 34, has no application to the city of Boston. Consequently, the plaintiffs have no remedy available to them under G. L. c. 71, Section 34.

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5. G. L. c. 71B, Section 5. The plaintiffs also purport to bring this action pursuant to G. L. c. 71B, Section 5. [Note 11] Their contention, accepted by the trial judge, is that Section 5 requires the city to appropriate funds for special education even where the amount requested exceeds the amount available for direct appropriation under St. 1936, c. 224. The plaintiffs attempt to distinguish our decision in Pirrone, supra, by arguing that Section 5 imposes on the city a special needs funding obligation which is distinct from the obligation to support public schools in general, and which supersedes the St. 1936, c. 224, limitation on school funding. They contend that Section 5 creates its own mechanism by which taxpayers and the school committee can enforce this funding obligation. The plaintiffs further argue that the obligation and scope of G. L. c. 71B, Section 5, is distinct from the remedy provided by G. L. c. 71, Section 34. Therefore, they reason that Pirrone, which dealt only with G. L. c. 71, Section 34, does not apply to actions brought under G. L. c. 71B, Section 5. We believe this interpretation to be contrary to the legislative purpose of both St. 1936, c. 224, and G. L. c. 71B.

We start with the premise that absent a clear legislative intent to the contrary the provisions of a special charter generally prevail over conflicting provisions of a subsequently enacted general law. Boston Teachers Local 66 v. Boston, supra at 564. Boston Teachers Local 66 v. School Comm. of Boston, supra at 472. Marshal House, Inc. v.

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Rent Control Bd. of Brookline, 358 Mass. 686, 698 (1971). Local regulations enjoy a presumption of validity, and a sharp conflict between the local and State legislation is required before the local regulation will be held invalid. Grace v. Brookline, 379 Mass. 43, 53-54 (1979). Bloom v. Worcester, 363 Mass. 136, 154 (1973). "That sharp conflict appears when either the legislative intent to preclude local action is clear, or, absent plain expression of such intent, the purpose of the statute cannot be achieved in the face of the local by-law." Grace v. Brookline, supra at 54. See Keane v. City Auditor of Boston, 380 Mass. 201, 208 (1980). The existence of legislation on a subject does not necessarily preclude local action, as long as the State legislative purpose can be achieved in the face of the local regulation. Bloom v. Worcester, supra at 156. To the extent possible, local statutes and statutes of general application should be construed together so as to constitute a harmonious whole consistent with the legislative purposes of both. See Boston Police Patrolmen's Ass'n v. Boston, 367 Mass. 368, 373 (1975). Cf. Registrar of Motor Vehicles v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 382 Mass. 580, 585 (1981).

We turn to a consideration whether St. 1936, c. 224, is inconsistent with G. L. c. 71B. As to express intent, it is clear that G. L. c. 71B does not explicitly refer to the financing of the Boston public schools, or to St. 1936, c. 224, nor does it, on its face, exempt Boston from its enforcement provisions. [Note 12] Nevertheless, the plaintiffs contend that the provision in G. L. c. 71B, Section 5, which requires school committees to include special education costs in their annual budgets "notwithstanding any general or special laws or charter provisions which limit the amount of money that may be appropriated in any city or town for school purposes" supersedes the appropriation limitation placed on the school committee of Boston. St. 1936, c. 224.

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We do not believe that the Legislature, in enacting G. L. c. 71B, Section 5, intended to repeal the detailed school financing system which has existed in Boston since 1898. See Pirrone v. Boston, supra at 411-412. We cannot reasonably infer that Section 5 removes all restrictions on the Boston school committee's appropriation power with respect to funds allegedly required for c. 766 purposes, or that it requires the mayor and the city council to honor any and all school committee requests for such funds. Rather, we construe the Section 5 "notwithstanding" provision as applicable to cities and towns other than Boston, i.e., municipalities which are subject to the requirements of G. L. c. 71, Section 34, but which may have conflicting charters or special laws. See, for example, Casey v. Everett, supra at 222, and cases cited (charter provision of city of Everett did not exempt city from obligation under G. L. c. 71, Section 34, to appropriate all funds requested by school committee). Cf. Amherst-Pelham Regional School Comm. v. Department of Educ., supra at 495 (school committee not limited by municipal finance law in its ability to reimburse parents for special education costs); G. L. c. 44, Sections 30, 31.

We recognize that the legislative intent to supersede local regulations need not be expressly stated where the State law deals with a subject comprehensively and "may reasonably be inferred as intended to preclude the exercise of any local power or function on the same subject because otherwise the legislative purpose of that statute would be frustrated." Bloom v. Worcester, supra at 155. See Boston Teachers Local 66 v. Boston, supra at 564; Keane v. City Auditor of Boston, supra at 208. However, the plaintiffs have not shown that enforcement of St. 1936, c. 224, would frustrate the legislative purpose of G. L. c. 71B. [Note 13]

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General Laws c. 71B, inserted by St. 1972, c. 766, was enacted in order to provide every child residing in the Commonwealth with "an adequate, publicly supported education" (emphasis supplied). St. 1972, c. 766, Section 1. See Commonwealth v. School Comm. of Springfield, 382 Mass. 665, 667 (1981); Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 515 (1975). The statute was designed to remedy past inequities and inadequacies in the provision of special education services and to ensure "a flexible and uniform" system of special education opportunities. St. 1972, c. 766, Section 1.

Chapter 766 does not preclude any local action on the subject of special education. Instead, the statute gives local

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school committees the responsibility of identifying, evaluating and providing programs for school-age children with special needs, G. L. c. 71B, Section 3; Amherst-Pelham Regional School Comm. v. Department of Educ., supra at 487-488, and requires them to allocate funds for special needs programs within their annual budgets, G. L. c. 71B, Section 5. The operation of St. 1936, c. 224, simply limits the amount of the Boston school committee's yearly appropriation. This restriction does not frustrate the purpose of c. 766. Indeed, it is clear on this record that the plaintiff school committee has, up to the initiation of this law suit, provided funds for special needs education pursuant to its power of appropriation under St. 1936, c. 224. To hold that St. 1936, c. 224, does not apply to c. 766 expenditures would be to give c. 766 programs a favored financial status in the Boston public school funding scheme. The Legislature intended to equalize educational opportunity when it enacted c. 766, not to grant special education a special status in the school funding scheme.

If sufficient funds are not available to finance all of the special education services considered desirable, the school committee may, as discussed above, ask the mayor to transmit a request for supplemental funds to the city council. However, nothing in c. 766 supports the plaintiffs' contention that the mayor is required to submit, and the council to approve, the request. If the mayor declines to submit the request, the school committee must allocate the existing funds equitably. Cf. Battle v. Pennsylvania, 629 F.2d 269, 278 (3d Cir. 1980); Hines v. Pitt County Bd. of Educ., 497 F. Supp. 403, 408 (E.D.N.C. 1980); Mills v. Board of Educ. of D.C., 348 F. Supp. 866, 876 (D.D.C. 1972) (if sufficient funds for special needs programs are unavailable, authorities required under local, State, and Federal statutes to expend existing funds equitably). Generally, school committees have long enjoyed the authority to use funds appropriated for school purposes as they see fit, "even to the extent of diverting sums specifically allocated in the budget from one use to another." Fitchburg Teachers Ass'n v. School Comm.

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of Fitchburg, 360 Mass. 105, 108 (1971). Collins v. Boston, 338 Mass. 704, 708-709 (1959). This is precisely what the Boston school committee has done in the past. [Note 14]

We recognize that the school committee has the difficult task of allocating existing appropriations, a task more difficult in a time when fiscal resources are in short supply and the people have voted to reduce taxes and limit local expenditures in future fiscal years. [Note 15] The problem of limited resources is more properly resolved by the political and legislative process than by resort to the courts. Absent a revision of the historic statutory scheme by the Legislature, the duty of the courts is to preserve the legislatively prescribed "unique balance," Pirrone v. Boston, supra at 410, of responsibilities between the school committee and the city officials concerning Boston public school financing.

We therefore hold that the city of Boston and its financial officers are not required under G. L. c. 71B, Section 5, to provide funding for special needs programs in addition to the funds appropriated under St. 1936, c. 224. The obligation to provide and allocate funding for special needs programs is subject to the limitations on school funding for the city of Boston contained in St. 1936, c. 224. [Note 16]

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6. Injunctive relief. The city asks us to enjoin the school committee from spending in excess of its fiscal 1981 charter appropriation. According to the record before us, the trial judge did not rule on this request, nor did he report the issue. [Note 17] We therefore decline to order such relief.