Howe v. Town of Ware

• Decision Date: 03 November 1953
• Citation: 330 Mass. 487,115 N.E.2d 455
• Parties: HOWE et al. v. TOWN OF WARE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 455

115 N.E.2d 455

330 Mass. 487

HOWE et al. v. TOWN OF WARE.

Supreme Judicial Court of Massachusetts, Hampshire.

Argued Sept. 17, 1953.

Decided Nov. 3, 1953.

John I. Robinson, Springfield, for petitioners.

Patrick S. Martowski, John T. Storrs, Ware, Emerson S. Searle, Springfield, for respondent.

Before QUA, C. J., and LUMMUS, RONAN, WILKINS and WILLIAMS, JJ.

WILLIAMS, Justice.

This is a petition under G.L. (Ter.Ed.) c. 71, § 34, as appearing in St. 1939, c. 294, by twelve alleged taxable inhabitants of the town of Ware to determine the amount of a deficiency in the appropriation by the town for the support of the public schools for the year 1950 and to order the town to provide a sum of money equal to the deficiency, together with a sum equal to twenty-five per cent thereof. A preliminary question for decision is raised by the respondent's answer which denies that the petitioners are taxable inhabitants of the town. See MacRac v. Selectmen of Town of Concord, 296 Mass. 394, 396, 6 N.E.2d 366, 108 A.L.R. 1450. A judge of the Superior Court found that of the twelve petitioners ten were on the tax rolls of the assessors of the town for the year 1950, but stated that he was 'not satisfied that * * * [they] have sustained the burden of proving that they were taxable inhabitants of the town * * * at the time of the commencement of the petition.' He entered a final decree dismissing the petition and the petitioners appealed.

The statute under which the petition is brought provides in part that in case a town fails to provide necessary money for the support of the public schools a petition in equity may be brought by ten or more taxable inhabitants or by the Attorney General, see Attorney General v. Town of Ware, 328 Mass. 18, 101 N.E.2d 365, to enforce the obligation of the town. The remedy so provided supersedes that formerly furnished by indictment, complaint, or action of tort. School Committee of City of Lowell v. Mayor of Lowell, 265 Mass. 353, 356, 164 N.E. 91. There is no general jurisdiction in equity in this Commonwealth to entertain a suit by individual taxpayers for the purpose set forth in this petition. See Fuller v Trustees of Deerfield Academy, 252 Mass. 258, 259, 147 N.E. 878, and cases cited. The present proceeding, being purely statutory, can be instituted only by those specifically authorized by the statute, see Richards v. Treasurer & Receiver General, 319 Mass. 672, 675, 67 N.E.2d 583, that is, by ten persons having the requisite qualifications. See Carlton v. City of Salem, 103 Mass. 141, 143; Butler v. Selectmen of Town of Wakefield, 269 Mass. 585, 587, 169 N.E. 498. The petition was filed on December 14, 1950, and whether the petitioners, or any of them, were taxable inhabitants on that date were questions of fact. O'Connor v. Brockton, 308 Mass. 34, 35, 30 N.E.2d 842.

A taxable inhabitant of a town within the meaning of the statute in question is a person who not only lives within its territorial bounds but is subject to a local tax assessment. The burden was upon the petitioners to prove their standing. The only evidence which they offered on this point was the testimony of the town clerk who testified, subject to the respondent's exception, that be borrowed the tax rolls of the town from the assessors and that from an examination of these rolls the names of ten of the twelve petitioners appeared thereon. It is assumed that, in testifying concerning the...