Sidebilder
PDF
ePub

plaintiff (as he says) the sum of $3,000, which shall then and there be made to appear, with other due damages. And whereas the said plaintiff says, that the said defendant has not in his own hands and possession, goods and estate to the value of $3,000 aforesaid, which can be come at to be attached, but has intrusted to and deposited in the hands and possession of the American Surety Company of New York, a corporation duly organized by law and having an usual place of business in said Boston, trustee of the said defendant's goods, effects and credits, to the said value: We command you, therefore, that you summon the said supposed trustee (if it may be found in your precinct), to appear before our justices of our said court, to be holden as aforesaid, to show cause, if any it has, why execution to be issued upon such judgment as the said plaintiff may recover against the said defendant in this action (if any) should not issue against his goods, effects, or credits, in the hands and possession of the said trustee."

The writ subsequently was amended by striking out the words "or tort" after the word "contract."

The defendant Shaw having died, the defendant Benjamin, who was appointed administrator de bonis non, had leave to appear and defend. G. L. c. 230, § 11. It is provided in G. L. c. 230, § 6, that:

"Writs of attachment and executions against executors or administrators for debts due from the testator or intestate shall run only against the goods and estate of the deceased in their hands, and not against their bodies, goods or estate."

2. Municipal corporations 879-Other laws yield to statutes dealing with municipal finance.

Statute dealing with municipal finance commonly carries with it implication that all other provisions of law are to yield to its terms.

3. Schools and school districts 99—Statute requiring "towns" to raise money by taxation to support schools is mandatory.

G. L. c. 71, § 34, requiring towns to raise by taxation money to support public schools, conveys inflexible legislative command; "towns" by chapter 4, section 7, cl. 34, including cities.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Town.] 4. Schools and school districts 135(1)—Sole power to contract with teachers is vested in school committee.

Under G. L. c. 71, power to contract with teachers is vested absolutely in school committee, and it cannot be held to strict performance of its duty without corresponding authority; power to contract importing power to agree on compensation.

5. Schools and school districts

103(1)—It

is duty of city officers to frame budget to provide salaries for teachers as voted by school committee.

Ultimate power to establish salaries of teachers in public schools being vested in school committee under G. L. c. 71, it is duty of city officers, framing budget under chapter 44, section 32, to provide for salaries of teachers as voted by school committee.

63(5)-Pow

6. Schools and school districts
er over salary of school superintendent is
vested solely in school committee.

Under G. L. c. 71, § 59, power over salary of superintendent of schools is vested solely in school committee.

7. Mandamus 107-Mandamus denied, where city officers owed no present duty to pay out funds.

The statute cover actions begun by trustee process. Harmon v. Osgood, 151 Mass. 506, 24 N. E. 401; Harmon v. Sweet, 221 Mass. 587, 593, 109 N. E. 942. If it be assumed from the appearance by the defendant. and the answer of the trustee, that the writ was duly served, the attachment was not of the goods and estate which were of the intestate in the possession of the administrator, but of the administrator's own personal proper-ers ty. Eaton v. Walker, 244 Mass. 23, 28, 30, 138 N. E. 798.

The court accordingly had jurisdiction (G. L. c. 212, § 3; Id. c. 230, § 1), and the order is affirmed.

Where city officers owed no present duty to pay funds for increased salaries of school teachauthorized by school committee, mandamus will be denied.

Petition for mandamus by Rena A. Decatur and others against the Auditor of the City of Peabody and others to compel appropriate city officers to approve pay rolls, draw warrants, and make payments in accordance with contracts of school committee

DECATUR et al. v. AUDITOR OF CITY OF for increase of salaries. Petition dismissed.

PEABODY et al.

(Supreme Judicial Court of Massachusetts. Essex. Feb. 2, 1925.)

1. Municipal corporations 879- Municipal indebtedness act interpreted to effectuate purpose.

Municipal indebtedness act (G. L. c. 44), being intended to set rigid barriers against expenditures in excess of appropriations and to put cities on sound financial basis, should be interpreted so as to effectuate its purpose.

S. H. Donnell, of Peabody, for petitioners. J. J. Ronan, of Salem (H. P. Farnham, of Peabody, on the brief), for respondents.

RUGG, C. J. The great question in this case is whether, when the school committee of a city other than Boston has voted to increase salaries of teachers in the public schools according to its own conceptions of the public needs, and has transmitted the estimate of the annual expenses of the

(146 N.E.)

of the school committee had been settled by numerous decisions, which are collected in Leonard v. School Committee of Springfield, 241 Mass. 325, 135 N. E. 459. It there was said at pages 329, 330 (135 N. E. 461), in summarization of those decisions:

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, § 32, the mayor and city council are bound to provide appropriations based on such increase. Stated more concisely the question is, whether the ultimate power to establish the salaries of teachers in the public schools, giving instruction in the branches required to be taught by G. L. c. 71, is vested in the school committee or in the mayor and city council of cities outside of Boston.

"The school committee is an independent body, entrusted by law with broad powers, important duties and large discretion. The obligation 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 committee early in January, 1924, caused individual contracts to be signed in its behalf with each of the petitioners to serve the city at the increased salary. Thereafter the school committee transmitted to the mayor an estimate in detail of the expenses of the school department for 1924, which included an item for increases in the salaries of the teachers adequate to pay the additional amount required to pay salaries at the increased rate. The mayor refused to include in his annual budget the amount of increases in salaries thus requested by the school committee. The budget in this respect as submitted by the mayor was approved by the city council. The present proceeding is brought to compel the appropriate city officers to approve payrolls, to draw warrants and to make payments in accordance with the contracts of the school committee for the increase of salaries.

to pupils and to deprive them of the power to determine the salaries of teachers. There is much of self-sacrifice and devotion to the common welfare among teachers in the public schools. But, nevertheless, the character of service to be obtained depends to a considerable degree upon the compensation offered. The full and appropriate discharge of their duties by school committees requires ample power to select competent teachers. The Legislature, moved by obvious and strong reasons, has vested the school committee with the absolute and unconditional power to agree with teachers upon their salaries to the end that high standards may be secured and maintained in the education of the youth of the Commonwealth. In the exercise of their honest judgment on the question of salaries for teachers, the school committee are not restricted to the amounts appropriated. For the time during which schools must be kept by law the municipalities must pay such salaries as may be fixed by the school committee. To take this power from the school committee would break up the long-established system of our law in regard to public schools. The only supervision which the city council or towns can exercise over the school committee is to vote to close the schools after they have been kept the length of time specified by the law."

It has been argued that, since the public schools have been kept open in Peabody during the school year here involved 20 days 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 put all cities upon a sound financial basis as far as possible by legislation. That statute was new in kind with reference to the fiscal management of cities. It ought to be interpreted so as to effectuate its highly salutary and important purpose. Flood v. Hodges, 231 Mass. 252, 120 N. E. 699.

The main provisions of the municipal indebtedness act are in G. L. c. 44, §§ 32 and 31. All the previously existing provisions of the statutes respecting school committees and their powers were re-enacted in substance in G. L. c. 71. The special and hitherto unlimited power of the school committee to contract with teachers is in section 38, and the committee's general authority over schools, in section 37. These provisions are in almost the same words as those long familiar in our statutes.

There are thus in the General Laws two provisions, which, if treated as detached and separate enactments, seem to be contrary one to the other. The chapter on municipal finance appears to give to the mayor and legislative department of the city absolute power over the budget, with complete and exclusive control over appropriations, and thus to require every municipal department to yield to its determination as to the amount of money available for any public expenditure. The chapter relating to public schools appears to vest in the school committee complete and exclusive control over the salaries to be paid to teachers in the public schools without being required to consult with any other public board.

These respective provisions were combined in the revision of statutes known as General Laws. There is no indication of legislative thought that there was any inconsistency or repugnancy between the several statutes thus consolidated. There is every presumption that this body of statute law was intended to be consistent and harmonious. It must, if reasonably practicable, be interpreted in furtherance of that intention. Brooks v. Fitchburg & Leominster Street Railway, 200 Mass. 8, 18, 86 N. E. 289.

The system of public schools and the powers of the school committee with reference to them are not the result of any single or recent statute, but have been the slow growth of our institutions beginning in colonial times extending through the provincial period and flourishing as one of the most cherished of all our institutions under the Constitution. The existing provisions of law must be construed and applied in view of these historical considerations.

[2] A statute, such as that dealing with municipal finance, commonly carries with it an implication that all other provisions of law are to yield to its terms. Its general scope and its main purpose are directed to

the use of public funds. Several commissions have been appointed in recent years to study municipal finance and to report to the General Court. The importance attributed to the subject is thus accentuated. All municipal activities must be supported out of the public treasury. They are all dependent upon appropriations made by the legislative department of cities. They naturally would all be put upon the same footing.

[3] One consideration and one alone puts the school committee with respect to salaries of teachers upon a basis different from that of other municipal departments. There is contained in G. L. c. 71, § 34, a provision long in our statutes, in these words:

"Towns shall raise by taxation money necessary for the support of public schools as required by this chapter."

The word "towns" in this section includes cities. County Commissioners, 153 Mass. 40, 26 N. G. L. c. 4, § 7, cl. 34; Lynn v. E. 409. The words of section 34 of chapter 71 are words of command and not of choice. They convey a positive and inflexible legislative command. Rea v. Aldermen of Everett, 217 Mass. 427, 430, 105 N. E. 618; Milton v. Auditor of Commonwealth, 244 Mass. 93, 94, 138 N. E. 589.

[4] One of the requirements of chapter 71, as already pointed out, is that the salaries to be paid to the teachers in the public schools shall be determined by the school committee. The power to contract with teachers in the public schools and to fix their salaries for many years has been conferred by the statutes and has received definite construction. That construction has been that the power is vested absolutely in the school committee. The obvious reason was that suitableness of teachers must depend to a large degree upon the amount of compensation which can be offered, and that, since the general charge and superintendence of schools is vested in the school committee, it cannot be held to a strict performance of its duties without corresponding authority. Moreover, the power to contract with teachers imports the power to agree upon compensation. Batchelder v. Salem, 4 Cush. 599; Leonard v. School Committee of Springfield, 241 Mass. 325, 135 N. E. 459. The requirement that the school committee shall "contract with the teachers of the public schools" with the necessary implication of fixing salaries, is as definite as that requir ing high schools, evening schools, free textbooks and the minimum number of days of school instruction. Compare sections 1, 4, 18, 19, 48, of G. L. c. 71.

[5] It is not practicable to differentiate be tween these several requirements of that chapter and say that one is mandatory and another merely directory or permissive. It

(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. 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 from the agreed statement of facts that out of the appropriation actually made for schools for the year 1924 enough cannot now remain to meet the increases in teachers' salaries, because it must be assumed that schools have been kept in session in the 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 teaches here disclosed. The petition must be deers, although susceptible of being presented on this record, has not been argued. See, 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 same. It has been assumed also that all the petitioners pursuant to their contracts taught subjects required to be taught by G. L. c. 71, and that none of them taught exclusively. Landlord and tenant subjects not so required.

[6] It is plain from the provisions of G. L. c. 71, § 59, that the power of the school committee over the salary of the superintendent of schools is the same as over salaries of teachers. See in this connection, as to compensation of truant officers, G. L. c. 77, § 12.

nied.

Petition dismissed.

MORROW v. OTIS et al. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 30, 1925.)

169(6)-Evidence

held insufficient to justify finding of landlord's negligence.

In action by renter of room for injuries caused by escaping gas on second night of her occupancy, evidence held insufficient to justify finding of negligence on part of landlord.

not evidence of negligence.

All parties have presented the case on the theory that mandamus is the proper remedy. Attorney General v. Apportionment Commissioners, 224 Mass. 598, 609, 610, 113 N. E. 581, and cases there collected. No question has been raised as to form of remedy, procedure or parties. Avowedly, a de- 2. Gas 20 (2)-Escape of gas from fixture cision on the merits is desired by everybody in interest. We have treated the case on that footing without thereby intending to enlarge the remedy by mandamus beyond the established bounds. Daly v. Medford, 241 Mass. 336, 339, 135 N. E. 307, and cases there collected; City Council of Newburyport v. Mayor of Newburyport, 241 Mass. 575, 136 N. E. 70.

We do not go so far as to hold that the school committee has power to disregard the

Unexplained escape of gas from fixture owned by defendants is of itself no evidence of their negligence.

3. Landlord and tenant

169(5)-Installation

of new gas jet after illness from escaping gas held not admission of negligence.

Even though, after renter of room became ill from escaping gas, new gas jet was put in, it would not justify inference of defective condition, or be admission of negligence.

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

4. Landlord and tenant 164(6)-In absence of knowledge that fixture was defective and needed repairs, defendant not liable.

Where it was not shown that defendant, when room was let to plaintiff, knew or with reasonable care should have known, that gas fixture was defective, or that repairs were needed, she was not liable for illness from escaping gas, though she told plaintiff the fixture was all right.

fixture], and he said it was all right"; also, that the room "won't be occupied again until it is all right." A few days later the plaintiff visited the room in company with Mrs. Otis and said, "Well, you have had the gas fixture all fixed up new now," to which she received no reply. At the close of the plaintiff's case the court, upon motion, directed the jury to return a verdict for the defendants. The plaintiff's exception to this sideration.

Exceptions from Superior Court, Suffolk order presents the only question for our conCounty; F. J. MacLeod, Judge.

Action of tort by Katherine M. Morrow against Alice G. Otis and others to recover for injuries caused by escaping gas. Verdict was directed for defendants, and plaintiff excepts. Exceptions overruled.

[1] No one testified that the gas fixture was defective or out of repair either before be assumed that upon the evidence the jury or after the plaintiff was made ill, but if it would have been warranted in finding that the injuries to the plaintiff were caused by

Charles S. Walkup, Jr., of Boston, for the escape of gas from a defective fixture in plaintiff.

L. C. Doyle, of Boston, for defendants.

SANDERSON, J. This is an action of tort to recover damages for injuries caused by escaping gas. There are three counts, based upon negligence of the defendants, in permitting gas and heating appliances to become defective, to be and remain out of repair, and in knowingly letting to the plaintiff a room wherein the gas fixtures and appliances were defective.

The plaintiff was the only witness called. She hired of the defendants a room, lighted and heated by gas, in a building owned by them, for which she paid rent in advance. When the agreement was made, the plaintiff noticed that the gas fixture in the room was an old one, and asked whether it was all right. The defendant Mrs. Otis said, pointing to the fixture, "This is a safety catch here; perfectly all right;" that a man who had "fixed the gas fixture" says "it is all right; he ought to know." The plaintiff occupied the room two nights. On the first she turned on the gas for lighting the room, but not that for heating, and there was no trouble from escaping gas. The next night she turned on the gas for heating at about 8 o'clock, and left it on about three hours, when she turned it off at the safety catch near the wall, which Mrs. Otis had told her turned the gas off from the stove. The plaintiff thought there was no other shut-off, but did not know. After turning off the gas, she went to bed and upon awaking in the morning was not feeling well and fell when she tried to get up. Mrs. Spear, an occupant of the next room, who heard her fall, came with Mrs. Otis to the plaintiff's room and said that upon opening her (Mrs. Spear's) door, the hall was full of gas. Mrs. Spear then pointed to the gas jet in the plaintiff's room and said, "This is where the trouble is;" but she did nothing to it. The night after the accident Mrs. Otis said to the plaintiff that there had been a man there to "fix [the gas

her room-a question which we do not decide there is not sufficient evidence to justify a finding of negligence on the part of the defendants. There was no escape of gas on the first night of the plaintiff's occupancy. Why the gas escaped on the second night did not appear. Hill v. Iver Johnson Sporting Goods Co., 188 Mass. 75, 74 N. E. 303. The only evidence tending to show any change in the condition of the appliance after the first night was that which related to the plaintiff's use of the gas by turning it on and off.

[2, 3] The unexplained escape of gas from a fixture owned by the defendants is of itself no evidence of their negligence. Murphy v. Boston Elevated Railway, 229 Mass. 38, 118 N. E. 191. If there were a defect, its nature and the time when it came into existence were matters of conjecture, and it did not appear that the most careful inspection on the part of the defendants would have disclosed it. If the silence of Mrs. Otis when the plaintiff spoke to her a few days after the plaintiff was made ill would support a finding that a new gas jet had been put in after the accident, this fact would not justify the inference that a defective condition for which the defendants were responsible had existed before that time. It is not an admission of negligence. Menard v. Boston & Maine Railroad, 150 Mass. 386, 23 N. E. 214; Shinners v. Proprietors of Locks and Canals, 154 Mass. 168, 28 N. E. 10, 12 L. R. A. 554, 26 Am. St. Rep. 226; Albright v. Sherer, 223 Mass. 39, 111 N. E. 711.

[4] The plaintiff cannot recover on the ground that Mrs. Otis stated to her in substance that the gas fixture was all right, when she knew or should have known that it was defective. The evidence is not sufficient to prove that when the room was let the defendants knew, or in the exercise of reasonable care should have known, that the fixture was defective or that any repairs were needed on it. The facts in this case distinguish it from cases like Cutter v. Hamlen, 147 Mass. 471, 18 N. E. 397, 1 L. R. A.

« ForrigeFortsett »