TOWN OF LEXINGTON & another [Note 1] vs. COMMISSIONER OF EDUCATION & another [Note 2] (and a companion case [Note 3]).

ABRAMS, J. At issue is whether an act mandating increased busing for private school students is subject to G. L. c. 29, Section 27C, the "local mandate" provision of St. 1980, c. 580 (Proposition 2 1/2). In 1983, the Legislature amended G. L. c. 76, Section 1, to require that "[e]ach school committee shall provide transportation for any pupil attending. . . an approved private school within the boundaries of the school district, provided, however, that the distance between said pupil's residence and the private school said pupil attends exceeds two miles or such other minimum distance as may be established by the school committee for transportation of public school students." St. 1983, c. 663, Section 1 (Chapter 663). [Note 4] Notwithstanding the "local mandate" provision of Proposition 2 1/2, see infra at 696-698, the Legislature made no appropriations in the same session to cover the additional costs mandated by Chapter 663.

Chapter 663 took effect on January 1, 1984. St. 1983, c. 663, Section 3. Lexington decided not to bus private school students after the enactment of Chapter 663: It estimated the cost of providing Chapter 663 services at $21,750 for February through June, 1984, and $51,000 for the 1984-1985 school year. Newton, pursuant to Chapter 663, instituted transportation of an additional 420 private school students at a cost of $64,616 for the second semester of 1983-1984 and an estimated cost of $220,000 for services in 1984-1985. [Note 5]

Lexington and the school committee of Lexington (Lexington) sought a declaratory judgment, G. L. c. 231A, in

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the Supreme Judicial Court for Suffolk County that Chapter 663 was ineffective to require Lexington to furnish such transportation. Newton and the school committee of Newton (Newton) thereafter filed a similar action, and the single justice allowed a motion to consolidate. All parties filed motions for summary judgment. The single justice allowed the parties' joint motion to reserve and report the consolidated cases without decision for determination by the full court. The core of the dispute is whether Chapter 663 is within the scope of G. L. c. 29, Section 27C, and, if it is, whether Chapter 663 was enacted in compliance with that section. We conclude that, because there was no specific appropriation at the time Chapter 663 was enacted, there is no obligation on Lexington and Newton to provide private school students with transportation services beyond those required by G. L. c. 76, Section 1, prior to the enactment of Chapter 663.

1. Statutory background. The plaintiff's claim for declaratory relief involves three separate but interrelated statutory provisions: G. L. c. 29, Section 27C; G. L. c. 76, Section 1, as amended through St. 1983, c. 663; and G. L. c. 71, Section 7A. We examine each in turn. The "local mandate" provision of Proposition 2 1/2 provides in relevant part: "Notwithstanding any provision of any special or general law to the contrary: (a) Any law taking effect on or after January first, nineteen hundred and eighty-one, imposing any direct service or cost obligation upon any city or town shall be effective in any city or town only if such law is accepted by vote or by the appropriation of money for such purposes, in the case of a city by the city council in accordance with its charter, and in the case of a town by a town meeting, unless the general court, at the same session in which such law is enacted, provides, by general law and by appropriation, for the assumption by the commonwealth of such cost, exclusive of incidental local administration expenses and unless the general court provides by appropriation in each successive year for such assumption." G. L. c. 29, Section 27C, as amended by St. 1981, c. 782, Section 4. Among the concerns thus embraced by Proposition 2 1/2 were those of "freeing cities and towns from expenditures mandated by State law" and of "preventing

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the involuntary imposition on cities and towns of certain direct service or cost obligations resulting from statutes and administrative rules or regulations." Massachusetts Teachers Ass'n v. Secretary of the Commonwealth, 384 Mass. 209, 216 (1981).

The relevant provision of G. L. c. 76, Section 1, was enacted in 1950. Its thrust was "to afford private school students the same transportation as public school students." Attorney Gen. v. School Comm. of Essex, 387 Mass. 326, 337 (1982). Prior to Chapter 663, G. L. c. 76, Section 1, required "that if the distance between a private school student's residence and the public school he is entitled to attend exceeds two miles, such child [was] to be afforded transportation to his private school up to the distance from his residence to the public school he is entitled to attend." G. L. c. 76, Section 1, as amended through St. 1972, c. 766, Section 12. Chapter 663, purporting to extend the transportation obligations of the cities and towns, followed on the heels of the Attorney Gen. v. School Comm. of Essex decision.

Last, G. L. c. 71, Section 7A, sets forth the general scheme by which towns receive retroactive State reimbursement for expenses incurred in pupil transportation. The amount of reimbursement per pupil for transportation to private schools may not exceed the average per pupil cost for transportation to public schools. Such reimbursement is further limited to costs in excess of $5 per year per pupil and is subject to appropriation of funds by the Legislature as well as to the approval of the Commissioner of Education (Commissioner). [Note 6] On the basis of these several statutory provisions, we address the arguments of the parties.

2. Is Chapter 663 a "local mandate" within the scope of G. L. c. 29, Section 27C? The parties stipulate that Chapter 663 "imposes a direct service or cost obligation upon Lexington and Newton." The Commissioner and the Board of Education contend, however, that Chapter 663 is nonetheless immune from

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the requirements set forth in G. L. c. 29, Section 27C. The defendants maintain that either: (1) "[t]he Legislature was not imposing a 'new' local mandate in enacting Chapter 663" and thus G. L. c. 29, Section 27C, is inapposite; or (2) Chapter 663 was a "rule or regulation enacted or promulgated as a direct result of" a decision of this court and is thus an exception within G. L. c. 29, Section 27C (g); or (3) the Legislature intended that Chapter 663 supersede the requirements of G. L. c. 29, Section 27C. We do not agree.

First, the defendants' contention that Chapter 663 simply "restored the status quo" by reinstating rights in existence when Proposition 2 1/2 was passed is plainly wrong. Prior to Chapter 663, private school students had no right to busing beyond the distance to the nearest public school. Attorney Gen. v. School Comm. of Essex, supra at 337. Chapter 663 was, therefore, "a new law changing existing law," Cambridge v. Boston, 130 Mass. 357, 360 (1881), and thus lies within the purview of G. L. c. 29, Section 27C.

Second, we agree that G. L. c. 29, Section 27C (g) exempts from the requirements of G. L. c. 29, Section 27C (a), "any costs to cities and towns . . . resulting from a decision of any court of competent jurisdiction, or to any law, rule or regulation enacted or promulgated as a direct result of such a decision." The defendants argue that Chapter 663 was enacted as a "direct result" of School Comm. of Essex and is thus exempt from the "local mandate" requirements. However, the School Comm. of Essex decision did not impose costs on the cities and towns. It merely set forth the extent of the statutory requirement for busing of private school students. If anything, the School Comm. of Essex decision limited the costs required to be expended by cities and towns for the busing of private school students.

The Legislature, in enacting G. L. c. 29, Section 27C (g), exempted from the constraints of Section 27C (a) any mandated costs or services which were not initiated by the Legislature and over which it has no control. Thus, the Section 27C (g) exception applies to a "law, rule or regulation enacted or promulgated" which in implementing a court decision imposes costs on cities and

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towns. Because the increased costs mandated by Chapter 663 were not required by the School Comm. of Essex decision, Chapter 663 is not a "direct result" of that decision within the meaning of the statute.

Third, the defendants propose that Chapter 663 escapes Proposition 2 1/2 because "if a general and a specific statute cannot be reconciled, the general statute must yield to the specific statute, particularly where the specific statute was enacted after the general." See Pereira v. New England LNG Co., 364 Mass. 109, 118-119 (1973). Reliance on that rule of statutory construction would negate the "local mandate" provision of Proposition 2 1/2, the dictates of which pertain "[n]otwithstanding any provision of any special or general law to the contrary" to "[a]ny law imposing any direct service or cost obligation upon any city or town" (emphasis added). G. L. c. 29, Section 27C. Nor is there any support for the defendants' alternative argument that the Legislature impliedly repealed G. L. c. 29, Section 27C, with respect to Chapter 663. As the defendants themselves concede, Chapter 663 "does not indicate any express amendment or repeal of section 27C, and indeed repeal by implication is not favored." See Emerson College v. Boston, ante 303, 306 (1984). See also American Grain Prod. Processing Inst. v. Department of Pub. Health, 392 Mass. 309, 322 (1984); Commonwealth v. Graham, 388 Mass. 115, 125 (1983). We conclude that Chapter 663, because it is a "law taking effect on or after January first, nineteen hundred and eighty-one, imposing [a] direct service or cost obligation upon" cities and towns, is subject to G. L. c. 29, Section 27C (a).

3. Did the Legislature enact Chapter 663 in compliance with the requirements of G. L. c. 29, Section 27C (a)? Under G. L. c. 29, Section 27C (a), a law mandating costs for a city or town must be accompanied, "at the same session in which such law is enacted . . . by general law and by appropriation for the assumption by the commonwealth of such cost" (emphasis added). [Note 7] Further, the law is ineffective "unless the general court

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provides by appropriation in each successive year for such assumption." Id. The plaintiffs assert that these requirements were not met in the case of Chapter 663. We agree.

The insistence, in G. L. c. 29, Section 27C (a), on "same session" appropriation to be followed by appropriations "in each successive year" means that the Legislature envisioned a scheme wherein cities and towns would be reimbursed in advance -- or, at least, contemporaneously -- for costs incurred pursuant to the mandate. In any year in which the Legislature declines to anticipate those costs through a specific appropriation, the mandate lapses. This scheme most convincingly realizes "the requirement that the Commonwealth assume the cost, at least, of any new law or regulation imposing any direct service or cost obligation on any city or town without its consent." Massachusetts Teachers Ass'n v. Secretary of the Commonwealth, 384 Mass. 209, 221 (1981).

The parties agree that St. 1983, c. 663, Section 1, is a "general law" mandating costs on the cities and towns and that there was no "same session" special appropriation by the Legislature to sustain the newly-mandated financial burden. Chapter 663, Sections 2 and 4, [Note 8] simply outline a method by which reimbursement

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may be sought by cites and towns after the costs have been incurred, but do not appropriate any funds. [Note 9]

Nor does G. L. c. 71, Section 7A, pass muster as a "same session" appropriation in keeping with G. L. c. 29, Section 27C (a). First, G. L. c. 71, Section 7A, reimbursement to cities and towns is made in the fiscal year after the costs are incurred. Second, such reimbursement is based on a consideration of all transportation expenditures and is not specifically targeted to assumption of Chapter 663 costs. Third, G. L. c. 71, Section 7A, payments are "subject to appropriation"; in other words, while G. L. c. 71, Section 7A, may authorize reimbursement of Chapter 663 costs, it, in itself, does not effectuate such payment. [Note 10]

The defendants in fact concede that "[d]uring the session in which it enacted St. 1983, c. 663, the General Court did not appropriate any money to cover the costs incurred in providing

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transportation to private school pupils in accordance with Chapter 663." The defendants maintain that, because Chapter 663 did not impose any obligation until 1984, legislative appropriation in the 1984 session should satisfy G. L. c. 29, Section 27C (a). See St. 1984, c. 188, item 7035-0004 (supplemental appropriation of $131,117 to make payments pursuant to Section 2 of Chapter 663 for costs incurred in 1983-1984 school year); St. 1984, c. 234, item 7035-0004 (appropriation of $53,733,756 for reimbursement of cities and towns for fiscal 1984 expenditures for transportation of pupils pursuant to several statutory provisions, including G. L. c. 71, Section 7A). The short answer is that the "plain meaning" of G. L. c. 29, Section 27C (a), is that funding be provided at the same time that a mandate is imposed on cities and towns.

Finally, the defendants maintain that the "same session" appropriation requirement of G. L. c. 29, Section 27C (a), is fully met by the annual general appropriations bill containing additional unrestricted financial assistance to cities and towns. Such an approach would render the "local mandate" provision of Proposition 2 1/2 meaningless, for it would always be possible to attribute undesignated increases in State aid to the local mandate being challenged.

Requiring the specific allocation of funds for each mandated service best effectuates the fiscal protection of local government that Proposition 2 1/2 was designed to achieve. The Legislature is free to decrease unrestricted local aid or to use those funds specifically to implement Chapter 663 or other legislatively mandated costs. That is a legislative, not an agency, determination. Funds not directed by the Legislature to a specific program are discretionary and may be used by local authorities for any municipal purpose.

We hold that, because the Legislature did not assume the costs of Chapter 663 "by general law and by appropriation" in the 1983 session, the plaintiffs are not obligated to meet the additional transportation costs. [Note 11] They, of course, remain free

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to accept Chapter 663 of their own accord, as provided in G. L. c. 29, Section 27C (a), and to seek reimbursement under G. L. c. 71, Section 7A. The case is remanded to the county court for entry of a judgment that Lexington and Newton are not required to provide private school students with transportation services beyond those required by G. L. c. 76, Section 1, prior to the enactment of Chapter 663. See Attorney Gen. v. School Comm. of Essex, 387 Mass. 326, 337 (1982).

So ordered.