Commissioners of Woburn Cemetery v. Treasurer of Woburn

• Decision Date: 16 January 1946
• Citation: 64 N.E.2d 627,319 Mass. 86
• Parties: COMMISSIONERS OF WOBURN CEMETERY v. TREASURER OF WOBURN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

319 Mass. 86

64 N.E.2d 627

COMMISSIONERS OF WOBURN CEMETERY v. TREASURER OF WOBURN.

Supreme Judicial Court of Massachusetts, Middlesex.

January 16, 1946

December 6, 1945.

Present: FIELD, C.

J., LUMMUS, RONAN WILKINS, & SPALDING, JJ.

Woburn. Municipal Corporations, Trusts, Cemetery, Department, Contracts Municipal finance.

Contract, Validity With municipality. Under St. 1884, c. 109, Section 6, as amended by St. 1892, c. 149, Section

3, income from trust funds held by the city of Woburn for its cemetery should not have been deposited by the city treasurer in a general bank account in which all the city revenues were deposited, but should have been kept separate, and was subject to the control and management of the board of cemetery commissioners.

Under the charter of the city of Woburn, St. 1897, c. 172, the board of cemetery commissioners are in charge of a department of the city and subject to G. L. (Ter. Ed.) c. 44, Section 31.

The power of the board of cemetery commissioners of the city of Woburn under St. 1884, c. 109, Section 4, to expend, without a previous appropriation, money received by the city from the sale of cemetery lots was taken away by St. 1928, c. 396, Section 2 and thereafter G.L.c.

44, Section 53, was applicable.

A contract by a city's cemetery department imposing on the city an obligation to pay for work done in preparing a portion of the cemetery for burial purposes was invalid where payment was to be made as an ordinary current municipal expense and the appropriation available to the cemetery department at the time of the making of the contract was insufficient to meet the expenditure required thereby.

Under St. 1884, c. 109, Section 4, proceeds received by the city of Woburn from the sale of lots in its cemetery should not have been deposited in a general bank account in which all the city revenues were deposited, but should have been kept separate.

PETITION, filed in the Superior Court on November 15, 1944. The case was heard by O'Connell, J.

J. E. Henchey, for the petitioners. J. Gorrasi, for the respondent, submitted a brief.

RONAN, J. This is a petition by the board of commissioners of Woburn Cemetery for a writ of mandamus to compel the respondent to "separate the funds of your petitioners from other funds in his custody or possession as treasurer of the city of Woburn," and to order him to pay from the funds of the petitioners the sum of $1,400 to one Akeson for work done by him in laying out lots in the said cemetery in accordance with a contract between him and the said board. The petitioners appealed from a judgment dismissing the petition.

The town of Woburn purchased in 1845 a parcel of land which, together with other land subsequently acquired, has since been maintained as a cemetery. This cemetery since the enactment of St. 1884, c 109, as amended by St. 1892, c. 149, has been under the control and management of a board of commissioners who, in accordance with these two chapters, were elected annually until the town became a city in 1888. Under the chapters just mentioned, the board was charged with the maintenance, embellishment and improvement of the cemetery. The proceeds from the sales of lots were to be paid into the city treasury, to be kept separate from other funds and to be devoted to the improvement and embellishment of said cemetery under the direction of the board. St. 1884, c. 109, Section 4. The city was authorized to hold "any appropriation, grant, donation, gift or bequest" in trust for the care of burial lots or for the improvement of the cemetery in accordance with the terms upon which the gift was made, or upon such conditions as the board might establish, and could by an agreement bind the city to apply the gift in accordance with such terms and conditions. St.

1884, c. 109, Section 5, as amended by St. 1892, c. 149, Section 2. It was provided by St. 1884, c. 109, Section 6, as amended by St. 1892, c. 149, Section 3, that "All funds now in the treasury of said city of Woburn, belonging to the account of said cemetery and any and all sums of money so received by said treasurer, shall be invested by him under the direction of said board of commissioners, and all the same and all property so received shall ever be kept separate from any other moneys or property belonging to said city, and the income of the same shall be received by its treasurer, be subject to the order of said board of commissioners, and be appropriated by them in such manner as shall in their opinion best promote the purposes for which said appropriation, grant, donation, gift or bequest was or is made.

"

The city charter, St. 1897, c. 172, Section 32, provides for the appointment by the mayor of a board of five cemetery commissioners, with the powers and duties prescribed by St. 1884, c. 109, as amended. The charter also provides, Section 37, that "The above-named administrative officers and boards shall, in their respective departments, make all necessary contracts for work . . . subject to the approval of the mayor in writing." Contracts made by any department where the amount involved is $500 or more must be in writing, and "no such contract shall be deemed to have been made or executed until the approval of the mayor is affixed thereto." St. 1897, c. 172, Section 42.

The cemetery during the period now in question has been maintained by appropriations made by the city supplemented by income from the trust funds and transfers made by the city council from an account captioned "sale of lots and graves." The petitioners made a contract with Akeson on October 7, 1943, to prepare a portion of the cemetery for burial purposes. In that year, the city appropriated for the maintenance of the cemetery $5,850 for salaries and $1,500 for expenses. The proceeds from the sales of lots were turned over to the city treasurer. Although this account was kept separate in the books of the city treasurer and in those of the city auditor, the proceeds were deposited by the treasurer in a general account kept by the city with a national bank in which all moneys received by the city were deposited. The city council in 1943, in addition to the appropriations above mentioned, transferred for the use of the cemetery from this general account in the national bank the sum of $3,400 which represented money that had come from the sales of lots.

The respondent is required by the provisions of St. 1884, c. 109, Sections 5 6, as amended by St. 1892, c. 149, Sections 2, 3, to invest the trust funds in accordance with the directions of the board, to keep them separate from all other moneys of the city, and to receive the income subject to the order of the board. The income is to be appropriated by the board in such manner as it shall deem best to promote the purposes for which the "said appropriation, grant, donation, gift or bequest was or is made." The trust funds in the custody of the treasurer have been divided into five classes, depending upon the terms of the trust. This classification has been maintained for many years. The balances of all these trust funds remaining after investments were made under the direction of the board have been deposited in a savings bank. G. L. (Ter. Ed.) c. 44, Section 54. The trust funds in one of these classes, consisting of some five hundred trusts paid to the city for the perpetual care of burial lots, have been consolidated into a single savings bank account. It has been the practice of the respondent to withdraw the interest on these various trust accounts at the direction of the board and to deposit the interest in a general account of the city, which was kept in a national bank and in...