O'Connor v. City of Brockton

• Decision Date: 04 January 1941
• Parties: O'CONNOR et al. v. CITY OF BROCKTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

308 Mass. 34

30 N.E.2d 842

O'CONNOR et al.

v.CITY OF BROCKTON.

Supreme Judicial Court of Massachusetts, Plymouth.

Jan. 4, 1941.

Action under G.L.(Ter.Ed.) c. 71, § 34, as amended by St.1939, c. 294, by Andrew O'Connor and others against the City of Brockton. From an unsatisfactory decree, plaintiffs appeal.

Appeal from ‘order * * * sustaining the demurrer’ dismissed, and interlocutory decree sustaining demurrer and final decree dismissing petition reversed and interlocutory decree entered overruling demurrer.Appeal from Superior Court, Plymouth County; Sheehan, Judge.

Argued before FIELD, C. J., and DONAHUE, LUMMUS, QUA, and DOLAN, JJ.

L. E. Crowley, of Brockton, for petitioners.

W. H. Gilday, City Sol., of Brockton, for respondent.

QUA, Justice.

This petition is brought under G.L.(Ter.Ed.) c. 71, § 34, as amended by St.1939, c. 294.

The amended section reads in part as follows: ‘Every city and town shall annually provide an amount of money sufficient for the support of the public schools as required by this chapter. Upon petition to the superior court, sitting in equity, against a city or town, brought by ten or more taxable inhabitants thereof, or by the mayor of a city, or by the attorney general, alleging that the amount necessary in such city or town for the support of public schools as aforesaid has not been included in the annual budget appropriations for said year, said court may determine the amount of the deficiency, if any, and may order such city and all its officers whose action is necessary to carry out such order, or such town and its treasurer, selectmen and assessors, to provide a sum of money equal to such deficiency, togethr with a sum equal to twenty-five per cent thereof.’ Then follow provisions for obtaining the money by taxation or borrowing, and the section closes with this sentence: ‘Said court may order that the sum equal to the deficiency be appropriated and added to the amounts previously appropriated for the school purposes of such city or town in the year in which such deficiency occurs and may order that the amount in excess of the deficiency be held by such city or town as a separate account, to be applied to meet the appropriation for school purposes in the following year.’

The allegations of the petition, omitting statements of law, are in substance these: The petitioners are ten taxable inhabitants of Brockton. That city has adopted a ‘Plan B’ charter [see G.L.(Ter.Ed.) c. 43, §§ 56-63]. Prior to the submission by the mayor to the city council of the annual budget for 1940 the school committee requested the mayor to include therein an additional sum of $4,000 necessary to pay an increase which had been voted by the school committee in the salaries of school janitors. The mayor refused to include this additional amount in the budget submitted, and the budget was passed by the council and approved by the mayor withoutincluding this additional sum. The school committee has requested of the mayor a supplementary appropriation to pay the salary increase, but he has refused to present any such supplementary appropriation to the city council. ‘That the amount of money appropriated by said city of Brockton for the support of the public schools of said city in the year 1940 is insufficient for the support of said public schools as required by chapter 71 of the General laws.’ The prayers are in accordance with the amended section 34.

The grounds of demurrer are stated in various forms. In substance they are (1) want of equity, (2) that the bill contains no detailed facts or figures showing that the total amount appropriated for the schools in 1940 is insufficient, (3) multifariousness, and (4) that the amended section 34 ‘refers solely to public education as defined by c. 71, §§ 1 to 19 inclusive and does not in terms or by implication refer to school janitors or other persons employed by the city of Brockton in connection with the up-keep or maintenance of school buildings.’

We think that the petition is sufficient under the terms of the statute.

No discussion is needed to demonstrate that the petition is not multifarious.

The demurrer is directed to the petition as a whole and not to any particular part of it. The demurrer on the remaining grounds herein stated should therefore have been overruled, if any cause of action under the statute is adequately set forth in any part of the petition. Carleton & Hovey Co. v. Burns, 285 Mass. 479, 484, 189 N.E. 612;Shea v. Shea, 296 Mass. 143, 147, 4 N.E.2d 1015;Bleck v. East Boston Co., 302 Mass. 127, 129, 18 N.E.2d 536. The last sentence of the petition herein before quoted does set forth a cause of action in words which in substance are a paraphrase of that which the statute itself requires to be alleged in the petition. A statutory cause of action may commonly be pleaded in the words of the statute creating it. Commonwealth v. Ballou, 283 Mass....