(146 N.E.) self but quite as much of its cities and towns. 2. Executors and administrators Om 430-At* * * This body of laws [R. L. c. 19 and the tachment held to be of administrator's own acts passed in amendment and extension there- personal property, and court had jurisdicof] was intended to be of general application, tion. except as restricted.

To say that any In view of G. L, C. 230, $ 6, relative to atcity was to be exempted from the provisions tachment of property of decedent, and chapter of either the whole or any particular part of 212, & 3; chapter 230, § 1, where writ in action this legislation would be to frustrate the mani- commenced by trustee process commanded sherfest intent of the Legislature. Almost all of iff to attach goods or estate of S. as administhe cities of the commonwealth have in their trator of G., attachment thereunder in view charters provisions similar in kind to those of appearance and answer held to be of adwhich appear in the charter of the city of Law- ministrator's own personal property, and surepce, with reference both to the police depart- perior court had jurisdiction despite chapter ment and to other branches of the civil serv- | 230, $ 7. ice. General legislation like that which we are now considering must be deemed to be in amend

Appeal from Superior Court, Suffolk Counment of all those charters, so far as it modifies

ty; J. Fox, Judge. their provisions."

Action of contract begun by trustee process It does not seem probable that the Legis- by Henderson Jones against Matthew A. N. lature intended to exempt one of the depart. Shaw, administrator of James H. Gardner, to ments of the city of Boston from the provi- recover for money had and received, and on sions of the civil service statute which was an account annexed in which Edgar P. Benof such general application and enacted to jamin, administrator de bonis non, was subbring about a reform in the civil service. stituted as defendant. From order denying The Boston Transit Commission had been his motion, under G. L. c. 230, § 7, to disauthorized in different years to construct miss action for lack of jurisdiction, defendseveral subways and tunnels and its duties

ant appeals. Affirmed. had changed from time to time, and the

J. S. R. Bourne, of Boston, for appellant. words “remaining in effect at the date of the passage of this act” in the statute transferring the duties of the commission to the

BRALEY, J. [1] The action is contract city of Boston, might appropriately refer to

begun by trustee process to recover $2,000 these “duties," many of which no longer re

on a count for money had and received with mained in effect. But if they be construed

a count on an account annexed. See Massato relate also to the “powers” of the com- chusetts Mutual Life Insurance Co. v. Green, mission, the act does not confer upon the 185 Mass. 306, 70 N. E. 202. The plaintiff city or the transit department the right to having obtained a verdict, the defendant beremove a person in the position of this pe- fore final judgment moved, under G. L. C. titioner except upon compliance with the pro

230, § 7, to dismiss the action for lack of visions of G. L. C. 31, § 26.

jurisdiction. The statute, in so far as maThe nature of the work that the transit terial, reads as follows: commission was required to do does not "Real and personal property of a deceased modify or change the conclusion here reach-person shall not be attached on mesne process ed. Nor does the fact that the reason for in an action upon a debt due from, or upon a notifying the petitioner of the termination claim against, the deceased, except upon the of his services was lack of work. He still permission of the Probate Court for the counhad the statutory right to notice and hearty where the executor or administrator of the ing.

deceased person was appointed.” Upon the facts before us the removal was [2] The court entered an order denying the unlawful, and in accordance with the order motion, and the case is here on appeal, which of the single justice, writ of mandamus is brings up only errors of law apparent on the to issue.

record. Given v. Johnson, 213 Mass. 251, 252, 100 N. E. 369.

The writ as amended, which is the foundation of the action, commanded the sheriff

"to attach the goods or estate of Matthew A. JONES V. BENJAMIN.

N. Shaw, as he is administrator of the estate

of James H. Gardner of Boston, within our (Supreme Judicial Court of Massachusetts. county of Suffolk, to the value of $3,000, and Suffolk, Jan. 30, 1925.)

summon the said defendant (if he may be found

in your precinct) to appear before our justices 1. Appeal and error 858-Appeal in law of our superior court, to be holden at Boston, proceeding brings up record only.

within and for our said county of Suffolk, on Appeal from order denying motion, under the first Monday of August next, then and there G. L. c. 230, $ 7, to dismiss action for 'lack of in our said court to answer unto Henderson jurisdiction, 'brings up only errors of law ap- Jones, plaintiff, of said Boston, in an action parent on record.

of contractor tort to the damage of the said For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

plaintiff (as he says) the sum of $3,000, which , 2. Municipal corporations 879–Other laws shall then and there be made to appear, with yield to statutes dealing with municipal other due damages. And whereas the said finance. plaintiff says, that the said defendant has not

Statute dealing with municipal finance comin his own hands and possession, goods and monly carries with it implication that all other estate to the value of $3,000 aforesaid, which provisions of law are to yield to its terms. can be come at to be attached, but has intrusted to and deposited in the hands and pos- 3. Schools and school districts 99—Statute session of the American Surety Company of requiring “towns" to raise money by taxation New York, a corporation duly organized by law to support schools is mandatory. and having an usual place of business in said

G. L. c. 71, $ 34, requiring towns to raise by Boston, trustee of the said defendant's goods, taxation money to support public schools, coneffects and credits, to the said value: We

veys inflexible legislative command; "towns" by command you, therefore, that you summon the chapter 4, section 7, cl. 34, including cities. said supposed trustee (if it may be found in

[Ed. Note.-For other definitions, see Words your precinct), to appear before our justices of our said court, to be holden as aforesaid, and Phrases, First and Second Series, Town.) to show cause, if any it has, why execution 4. Schools and school districts em 135(1)-Sole to be issued upon such judgment as the said

power to contract with teachers is vested in plaintiff may recover against the said defend school committee. ant in this action (if any) should not issue

Under G. L. c. 71, power to contract with against his goods, effects, or credits, in the teachers is vested absolutely in school commithands and possession of the said trustee."

tee, and it cannot be held to strict performance The writ subsequently was amended by of its duty without corresponding authority; striking out the words "or tort” after the power to contract importing power to agree on

compensation. word “contract."

The defendant Shaw having died, the de- 5. Schools and school districts 103(1)-It fendant Benjamin, who was appointed ad

is duty of city officers to frame budget to

provide salaries for teachers as voted by ministrator de bonis non, had leave to appear

school committee. and defend. G. L. c. 230, § 11. It is pro

Ultimate power to establish salaries of vided in G. L. c. 230, $ 6, that:

teachers in public schools being vested in school "Writs of attachment and executions against committee under G. L. c. 71, it is duty of city executors or administrators for debts due from officers, framing budget under chapter 44, secthe testator or intestate shall run only against tion 32, to provide for salaries of teachers as the goods and estate of the deceased in their voted by school committee. hands, and not against their bodies, goods or estate."

6. Schools and school districts em 63(5)-Pow.

er over salary of school superintendent is The statute cover actions begun by trustee vested solely in school committee. process. Harmon v. Osgood, 151 Mass. 506, Under G. L. c. 71, § 59, power over salary 24 N. E. 401; Harmon v. Sweet, 221 Mass. of superintendent of schools is vested solely in 587, 593, 109 N. E. 942. If it be assumed school committee. from the appearance by the defendant, and 7. Mandamus em 107–Mandamus denied, where the answer of the trustee, that the writ was

city officers owed no present duty to pay out duly served, the attachment was not of the funds. goods and estate which were of the intestate Where city officers owed no present duty to in the possession of the administrator, but pay funds for increased salaries of school teachof the administrator's own personal proper. ers authorized by school committee, mandamus ty. Eaton v. Walker, 244 Mass. 23, 28, 30, will be denied. 138 N. E. 798.

Petition for mandamus by Rena A. Deca. The court accordingly had jurisdiction (G. L. c. 212, $ 3; Id. c. 230, $ 1), and the order tur and others against the Auditor of the is affirmed.

City of Peabody and others to compel appropriate city officers to approve pay rolls, draw warrants, and make payments in ac

cordance with contracts of school committee DECATUR et al. v. AUDITOR OF CITY OF for increase of salaries. Petition dismissed. PEABODY et al.

S. H. Donnell, of Peabody, for petitioners. (Supreme Judicial Court of Massachusetts. J. J. Ronan, of Salem (H. P. Farnham, of Essex. Feb. 2, 1925.)

Peabody, on the brief), for respondents. 1. Municipal corporations Om879— Municipal indebtedness act interpreted to effectuate pur

RUGG, C. J. The great question in this pose.

case is whether, when the school committee Municipal indebtedness act (G. L. c. 44), be- of a city other than Boston has voted to ining intended to set rigid barriers against expen

crease salaries of teachers in the public ditures in excess of appropriations and to put schools according to its own conceptions of cities on sound financial basis, should be inter- the public needs, and has transmitted the preted so as to effectuate its purpose.

estimate of the annual expenses of the em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(146 N.E.) school department based on such increase | debtedness," and now embodied in G. L. C. to the mayor in conformity to the budget re- 44, entitled "Municipal Finance,” the powers quirements of G. L. C. 44, 8 32, the mayor of the school committee had been settled by and city council are bound to provide ap numerous decisions, which are collected in propriations based on such increase. Stated Leonard v. School Committee of Springfield, more concisely the question is, whether the 241 Mass. 325, 135 N. E. 459. It there was ultimate power to establish the salaries of said at pages 329, 330 (135 N. E. 461), in sumteachers in the public schools, giving instruc- marization of those decisions: tion in the branches required to be taught

“The school' committee is an independent by G. L. c. 71, is vested in the school com- body, entrusted by law with broad powers, immittee or in the mayor and city council of portant duties and large discretion. The oblicities outside of Boston.

gation to select and to contract with teachers The pertinent facts are that Peabody was implies examination as to their fitness and of incorporated as a city by Spec. Sts. 1916, necessity carries with it the authority to fix the c. 300. The form of that charter in its es compensation to be paid. It would be vain to sentials is similar to plan B of G. L. c. 43. impose upon the school committee responsibiliPursuant to previous votes authorizing in- ty for excellence of the instruction to be afforded creases in salaries of teachers, the school to pupils and to deprive them of the power to

determine the salaries of teachers. There is committee early in January, 1924, caused in much of self-sacrifice and devotion to the comdividual contracts to be signed in its behalf mon welfare among teachers in the public with each of the petitioners to serve the schools. But, nevertheless, the character of city at the increased salary. Thereafter the service to be obtained depends to a considerable school committee transmitted to the mayor degree upon the compensation offered. The full an estimate in detail of the expenses of the and appropriate discharge of their duties by school department for 1924, which included lect competent teachers. The Legislature, mov

school committees requires ample power to sean item for increases in the salaries of the ed by obvious and strong reasons, has vested the teachers adequate to pay the additional school committee with the absolute and unconamount required to pay salaries at the in- ditional power to agree with teachers upon their creased rate. The mayor refused to in- salaries to the end that high standards may be clude in his annual budget the amount of secured and maintained in the education of the increases in salaries thus requested by the youth of the Commonwealth. In the exercise

of their honest judgment on the question of school committee. The budget in this re

salaries for teachers, the school committee are spect as submitted by the mayor was ap- not restricted to the amounts appropriated. proved by the city council. The present pro- For the time during which schools must be kept ceeding is brought to compel the appropriate by law the municipalities must pay such salaries city officers to approve payrolls, to draw as may be fixed by the school committee. To warrants and to make payments in accord take this power from the school committee ance with the contracts of the school commit

would break up the long-established system of

our law in regard to public schools. The only tee for the increase of salaries.

supervision which the city council or towns can It has been argued that, since the public exercise over the school committee is to vote schools have been kept open in Peabody dur. to close the schools after they have been kept ing the school year here involved 20 days the length of time specified by the law.” longer than the period required by G. L. C. 71, § 1, the salaries as fixed by the school In dealing with municipal finance, by St. committee must be paid, because the city 1913, c. 719, the General Court provided in council might have ordered the schools clos- substance and effect that in all cities exed for that 20 days. It does not appear that cept Boston there shall annually be prethere would have been substantial saving in pared and presented for consideration by the the expenses of the public schools if that legislative department a budget which shall course had been attempted. The written consist of an itemized and detailed statecontracts made by the school committee with ment of the money required for the several the teachers call for an annual salary. It municipal departments and other city cannot be presumed or inferred on this rec- charges. The legislative department of ord that a reduction by 20 days in the school the city may reduce or reject any item, but year would have resulted in any reduction cannot increase any item nor add new items. of expense. Moreover, it is open to doubt It also was provided that no department whether under the present phrase of the stat- should incur liabilities in excess of the ap ute the time during which the public schools propriation made in the budget as finally esshall be kept open beyond the mandate of tablished, with exceptions not here material. the statute many not be for the school com- All acts and parts of acts inconsistent with mittee alone to determine. Compare G. L. the municipal indebtedness act were repealed c. 71, § 37; Batchelder v. Salem, 4 Cush. by section 22 of that act. 599, 603; Charlestown v. Gardner, 98 Mass. [1] The purpose of that act in general 587, 590.

was to set rigid barriers against expendiBefore the enactment of St. 1913, c. 719, tures in excess of appropriations, to confine entitled "An act relative to municipal in- | the borrowing of money and the issuance of

municipal bonds within strict limits and to the use' of public funds. Several commis. put all cities upon a sound financial basis sions have been appointed in recent years as far as possible by legislation. That stat. to study municipal finance and to report to ute was new in kind with reference to the the General Court. The importance attribfiscal management of cities. It ought to be uted to the subject is thus accentuated. All interpreted so as to effectuate its highly municipal activities must be supported out salutary and important purpose. Flood v. of the public treasury. They are all deHodges, 231 Mass. 252, 120 N. E. 689. pendent upon appropriations made by the

The main provisions of the municipal in- legislative department of cities. They natdebtedness act are in G. L. C. 44, 88 32 and urally would all be put upon the same foot31. All the previously existing provisions of | ing. the statutes respecting school committees [3] One consideration and one alone puts and their powers were re-enacted in sub- the school committee with respect to salaries stance in G. L. C. 71. The special and hither- of teachers upon a basis different from that to unlimited power of the school committee of other municipal departments. There is to contract with teachers is in section 38, contained in G. L. C. 71, 34, a provision and the committee's general authority over long in our statutes, in these words: schools, in section 37. These provisions are "Towns shall raise by taxation money neces. in almost the same words as those long fa- sary for the support of public schools as remiliar in our statutes.

quired by this chapter." There are thus in the General Laws two

The word “towns” in this section includes provisions, which, if treated as detached

cities. and separate enactments, seem to be contrary County Commissioners, 153 Mass. 40, 26 N.

G. L. C. 4, § 7, cl. 34; Lynn . one to the other. The chapter on municipal E. 409. The words of section 34 of chapter finance appears to give to the mayor and 71 are words of command and not of choice. legislative department of the city absolute They convey a positive and inflexible legispower over the budget, with complete and lative command. Rea v. Aldermen of Everexclusive control over appropriations, and ett, 217 Mass. 427, 430, 105 N. E. 618; Milthus to require every municipal department ton v. Auditor of Commonwealth, 244 Mass. to yield to its determination as to the amount 93, 94, 138 N. E. 589. of money available for any public expendi [4] One of the requirements of chapter ture. The chapter relating to public schools 71, as already pointed out, is that the salaries appears to vest in the school committee com- to be paid to the teachers in the public schools plete and exclusive control over the salaries shall be determined by the school committee. to be paid to teachers in the public schools The power to contract with teachers in the without being required to consult with any public schools and to fix their salaries for other public board.

many years has been conferred by the These respective provisions were combined statutes and has received definite construcin the revision of statutes known as General tion. That construction has been that the Laws. There is no indication of legislative power is vested absolutely in the school thought that there was any inconsistency committee. The obvious reason

was that or repugnancy between the several statutes suitableness of teachers must depend to a thus consolidated. There is every presump- large degree upon the amount of compensation that this body of statute law was intend- tion which can be offered, and that, since ed to be consistent and harmonious. It must, the general charge and superintendence of if reasonably practicable, be interpreted in schools is vested in the school committee, furtherance of that intention. Brooks V. it cannot be held to a strict performance of Fitchburg & Leominster Street Railway, 200 its duties without corresponding author. Mass. 8, 18, 86 N. E. 289.

ity. Moreover, the power to contract with The system of public schools and the pow-teachers imports the power to agree upon ers of the school committee with reference compensation. Batchelder v. Salem, 4 Cush. to them are not the result of any single or 599; Leonard v. School Committee of Spring. recent statute, but have been the slow growth field, 241 Mass. 325, 135 N. E. 459. The reof our institutions beginning in colonial quirement that the school committee shall times extending through the provincial pe- contract with the teachers of the public riod and flourishing as one of the most cher schools" with the necessary implication of ished of all our institutions under the Con- fixing salaries, is as definite as that requirstitution. The existing provisions of law ing high schools, evening schools, free textmust be construed and applied in view of books and the minimum number of days of these historical considerations.

school instruction. · Compare sections 1, 4, [2] A statute, such as that dealing with 18, 19, 48, of G. L. C. 71. municipal finance, commonly carries with it [5] It is not practicable to differentiate bean implication that all other provisions of tween these several requirements of that law are to yield to its terms. Its general chapter and say that one is mandatory and scope and its main purpose are directed to another merely directory or permissive. It ward uniformity, clarity and economy in | is clear that the design of section 34 was

(146 N.E.) to make the observance of certain require provisions of G. L. C. 44, $ 31, and involved ments of G. L. c. 71, imperative upon munic- the city in debt in excess of appropriation. ipalities and not subject even to the limita- A different remedy is set forth in G. L. C. tions of the provisions of law as to the budg- 71, $ 34, for failure to raise money necessary et. This compulsion imposed by the Gen- for the support of public schools as required eral Court is peremptory and unequivocal. by said chapter 71. The question presented It is something more than the simple per- by this record has been one of genuine difmission to one board of public officers to ficulty about which municipal officers of inmake contracts, or to fix salaries. Those tegrity and zeal for the public welfare well are to be found in other statutes. See, for might and doubtless have differed. But it example, G. L. C. 111, § 27. All such general cannot be assumed that any mayor and city provisions are subject to appropriations made council, when the law has been interpreted, under the provisions of the budget law. I would fail to make the necessary appropriaWith reference to public schools there is both tions. Police Commissioner of Boston v. the power in the school committee and the Boston, 239 Mass. 401, 409, 132 N. E. 181. express legislative mandate to the municipal [7] The agreed facts show that at the ity to “raise by taxation" the necessary time of the filing of this petition the appromoney. It follows from the provisions of priation unexpended was sufficient to meet said section 34, touching the public schools, the increase in salaries of teachers then acthat it is the duty of those framing the budget crued. The case was not argued at the bar under G. L. C. 44, § 32, to conform to G. L. of this court until December, 1924, and it c. 71, § 38, and to provide for the salaries was not practicable to reach a decision until of teachers in the public schools as voted by after the end of the fiscal year, which was the school committee.

the 31st day of that month. It is manifest [6] It is plain from the provisions of G. from the agreed statement of facts that out L. c. 71, $ 59, that the power of the school of the appropriation actually made for committee over the salary of the superintend schools for the year 1924 enough cannot now ent of schools is the same as over salaries remain to meet the increases in teachers' of teachers. See in this connection, as to salaries, because it must be assumed that compensation of truant officers, G. L. c. 77, schools have been kept in session in the 12.

city of Peabody as usual. Therefore it is The question whether clerks in the office not the official duty of the respondents at of the school department and school nurses present to pay out money in the circumstancstand upon the same footing as school teach- es here disclosed. The petition must be deers, although susceptible of being present- nied. ed on this record, has not been argued. See,

Petition dismissed. as to school nurses, G. L. C. 40, § 5, and St. 1921, c. 357. The facts are not presented with sufficient fullness to enable us to pass upon that question. We do not decide it. The parties have treated the case as involving teachers' salaries, and we have done the

MORROW v. OTIS et al. same. It has been assumed also that all the petitioners pursuant to their contracts taught

(Supreme Judicial Court of Massachusetts. subjects required to be taught by G. L. c.

Suffolk. Jan. 30, 1925.) 71, and that none of them taught exclusively 1. Landlord and tenant @ 169(6)–Evidence subjects not so required.

held insufficient to justify finding of landlord's All parties have presented the case negligence. the theory that mandamus is the proper In action by renter of room for injuries remedy. Attorney General V. Apportion- caused by escaping gas on second night of her ment Commissioners, 224 Mass. 598, 609, 610, occupancy, evidence held insufficient to justify 113 N. E. 581, and cases there collected. No finding of negligence on part of landlord. question has been raised as to form of remedy, procedure or parties. Avowedly, a de- 2. Gas Em 20(2)—Escape gas from fixture cision on the merits is desired by everybody

not evidence of negligence. in interest. We have treated the case on

Unexplained escape of gas from fixture ownthat footing without thereby intending to ed by defendants is of itself no evidence of their enlarge the remedy by mandamus beyond the

negligence. established bounds. Daly v. Medford, 241 3. Landlord and tenant ew169(5) - Installation Mass. 336, 339, 135 N. E. 307, and cases there

of new gas jet after illness from escaping gas collected; City Council of Newburyport v. held not admission of negligence. Mayor of Newburyport, 241 Mass. 575, 136

Even though, after renter of room became N. E. 70.

ill from escaping gas, new gas jet was put in, it We do not go so far as to hold that the would not justify inference of defective condischool committee bas power to disregard the Ition, or be admission of negligence.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


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