Callahan v. City of Woburn

Decision Date19 June 1940
Citation28 N.E.2d 9,306 Mass. 265
PartiesFRANK P. CALLAHAN v. CITY OF WOBURN (and forty companion cases [1]).
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

February 7, 1940.

Present: FIELD, C.


Civil Service. School and School Committee. Municipal Corporations, By-laws and ordinances, Municipal finance, Officers and agents. Woburn. Contract, What constitutes.

Ordinances of the city of Woburn establishing salaries of policemen and firemen were valid notwithstanding noncompliance with G.L. (Ter.

Ed.) c. 40, Section 32, as appearing in St. 1933, c. 185, 1; following Forbes v Woburn, ante, 67.

The statutory power of the school committee of a city to contract on behalf of the city to employ teachers and pay them salaries was not limited to the making of contracts that would run only during the financial year of the city nor by the amount appropriated by the city for its fiscal year: notwithstanding G.L. (Ter Ed.) c. 44, Section 31, the committee might in good faith make enforceable contracts with teachers and a superintendent of schools for a school year to begin in a September and to end in the succeeding August although before the end of the fiscal year on December

31 an appropriation for the payment of salaries in that department was exhausted.

Evidence as to election of teachers in a city for one year and at tenure and of their serving accordingly, without contracts in writing or formal acceptance by the teachers of their election warranted findings that contracts of employment were made.

Public school teachers, a superintendent, and employees of the school department in the civil service could not maintain actions of contract against the municipality employing them to recover balances of their lawfully fixed salaries or wages, unpaid because of insufficiency of appropriations for the school department; the sole remedy for such insufficiency was under G.L. (Ter. Ed.) c. 71, Section 34.

FORTY-ONE ACTIONS OF CONTRACT. Writs in the Fourth District Court of Eastern Middlesex dated variously February 3, 6, 7, and 14, 1939.

On removal to the Superior Court, the actions were heard together by Williams, J., who found for each plaintiff. The defendant alleged exceptions.

The only contention by the defendant in the first and second groups of actions described in the opinion was that ordinances fixing the salaries of the plaintiffs of those groups were invalid by reason of noncompliance with the provisions of Section 32 of G.L. (Ter. Ed.) c. 40 in the form appearing in St. 1933, c. 185, Section 1.

As to the third and fourth groups of actions, the contentions of the defendant in substance were that the evidence did not warrant a finding that contracts of the city with those plaintiffs were in existence; that the city could not enter into contracts of employment, payments under which would carry into the succeeding financial year, where no appropriation had been made providing funds for the payment of the whole contracts; that the school committee could not bind the city upon contracts of employment with teachers or other employees in excess of the appropriation existing at the time the contracts were made; and that those plaintiffs' remedy was not by actions of contract but solely under G.L. (Ter. Ed.) c. 71, Section 34.

J. Gorassi, City Solicitor, for the defendant.

J. E. Henchey, (J.

H. McLaughlin with him,) for the plaintiffs.

COX, J. These forty-one actions of contract to recover salaries or wages of employees, alleged to be due from the defendant city for the last part of 1938, were tried by a judge of the Superior Court sitting without jury. The declarations in two of the actions contain several counts in which the plaintiff Ring seeks to recover not only the salary alleged to be due him but also salaries alleged to be due to others who have assigned their claims to him. No issue is raised as to the validity of these assignments, and the assignors, together with the other plaintiffs, will hereinafter be referred to as plaintiffs. The judge made certain findings, gave and denied certain requests for rulings, and found for each plaintiff. The defendant's exceptions are consolidated in one bill.

The plaintiffs may be divided into four groups: (1) policemen, including the chief of police; (2) firemen; (3) school teachers and the superintendent of schools; and (4) employees of the school department.

1. All of the plaintiffs in groups (1) and (2) are within the protection of the civil service, and the only contention of the defendant as to their right to recover is that the ordinances of the defendant, establishing the salaries in question, are invalid as not having been adopted in compliance with the provisions of Section 32 of G.L. (Ter. Ed.) c. 40, in the form appearing in Section 1 of St. 1933, c. 185. This contention is disposed of adversely to the defendant by the decision in Forbes v. Woburn, ante, 67, where it was held that the charter of Woburn (St. 1897, c. 172, Sections 18, 25) makes the provisions of G.L. (Ter. Ed.) c. 40, Section 32, and St. 1933, c. 185, inapplicable to this defendant. Although this disposes of the defendant's contention, it may be well to point out that the facts found bring the cases of the plaintiffs in groups (1) and (2) within the principle stated in Barnard v. Lynn, 295 Mass. 144 , and they are entitled to recover despite the fact that there was no appropriation out of which their present claims could be paid. Barnard v. Lynn, 295 Mass. 144 . Fortin v. Chicopee, 301 Mass. 447 , 448. Goss v. District Court of Holyoke, 302 Mass. 148 , 149. Forbes v. Woburn, ante, 67. There was no reversible error in dealing with the claims of these plaintiffs.

2. The defendant contends that the facts found do not warrant the finding of the trial judge that contracts were made by the school committee with the teachers and superintendent. The judge found that the plaintiffs in group (3) were under contract with the city at stipulated salaries for the two school years of 1937-1938 and 1938-1939; that these contracts were made by the school committee; that the salaries were fixed by the rules then in force of the school committee; and that these contracts existed whether the teachers were under annual appointment or "tenure."

The charter of the city of Woburn provides that the management and the control of public schools shall be vested in a school committee, which shall exercise the powers and discharge the duties imposed by law upon school committees. St. 1897, c. 172, Section 28. The power to contract with teachers in the public schools and to fix their salaries is vested in the school committee by G.L. (Ter. Ed.) c. 71, Section 38, and it is plain from the provision of G.L. (Ter. Ed.) c. 71, Section 59, that the power of the school committee over the salary of the superintendent of schools is the same as over salaries of teachers. Leonard v. School Committee of Springfield, 241 Mass. 325 , 328. Decatur v. Auditor of Peabody, 251 Mass. 82, 88. To be sure, this power to contract is necessarily subject to the provision of Section 40, whereby the minimum compensation of every regular teacher of every public day school shall be at a rate of not less than $750 for the school year (see Frye v. School Committee of Leicester, 300 Mass. 537, 540), as well as to the provisions of Sections 41, 42 and 43 of said c. 71, relative to the tenure of teachers employed "at . . . discretion," to their suspension and discharge, and to the reduction of their salaries. See Paquette v. Fall River, 278 Mass. 172; Graves v. School Committee of Wellesley, 299 Mass. 80 , 81; Frye v. School Committee of Leicester, 300 Mass. 537.

We are of opinion that this power to contract with teachers and the superintendent is not limited to the making of contracts that will run only during the financial year of the city. Contracts for the school year, as distinguished from the financial year, are not unknown. See Sheldon v. School Committee of Hopedale, 276 Mass. 230 , 231; Pulvino v. Yarmouth, 286 Mass. 21, 22; Frye v. School Committee of Leicester, 300 Mass. 537 . Compare Decatur v. Auditor of Peabody, 251 Mass. 82 , 84; McDevitt v. School Committee of Malden, 298 Mass 213 . The provision of said Section 41 that every school committee, except in Boston, in electing a teacher or superintendent who has served in its public schools for three previous consecutive school years, shall employ him to serve at discretion is mandatory, and, in connection with the provision of Section 38 of said c. 71, to the effect that the school committee shall elect and contract with the teachers of the public schools, tends to the conclusion that the employment of teachers or of a superintendent is not necessarily related to the financial year of the city. Such a construction is consistent with the provision that a teacher or superintendent may serve "for the three previous consecutive school years" (Section 41), and thereby acquire a tenure, if employed for the fourth year, to serve at the discretion of the school committee. Paquette v. Fall River, 278 Mass. 172 , 174. In the cases at bar, the great majority of the teachers were already employed at discretion in 1938; several were elected on June 1, 1937, for one year and on July 25, 1938, they were put under "tenure" by vote of the school committee for the school year commencing in September, 1938. Others were elected on June 1, 1937, to serve for one school year and again in July, 1938, to serve for the school year beginning in September, 1938. It is apparent from a consideration of the statutes relative to the employment of school teachers that those who are not employed at discretion serve only upon a yearly basis. Whittaker v. Salem, 216 Mass....

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