Inhabitants of Milton v. Auditor of Commonwealth

• Decision Date: 27 February 1923
• Citation: 244 Mass. 93
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: INHABITANTS OF MILTON v. AUDITOR OF THE COMMONWEALTH & another.

244 Mass. 93

INHABITANTS OF MILTON v. AUDITOR OF THE COMMONWEALTH & another.

Supreme Judicial Court of Massachusetts, Suffolk.

February 27, 1923

October 20, 1922.

Present: RUGG, C.

J., BRALEY, PIERCE CARROLL, & JENNEY, JJ.

Moth Suppression. Gypsy Moth. Brown Tail Moth. State Forester. Statute Construction. Mandamus. Words, "Shall." The word "shall" in the provision of G.L.c. 132, Section 14 that "the

Commonwealth shall reimburse" certain cities and towns to the extent of fifty per cent of an amount beyond $5,000 spent for gypsy and brown tail moth suppression, is imperative and not permissive.

There is no statutory provision indicating that the State forester is given power to regulate the maximum of expenditure by municipalities for moth extermination. While no payments can be made by the Commonwealth to a municipality under

G.L.c. 132, Section 14, in excess of appropriations made therefor by the General Court, nevertheless the auditor of the Commonwealth and the

State forester must examine and pass upon accounts and vouchers presented to them by a municipality as the basis of a claim under the statute.

It being the function of the writ of mandamus to compel public officers to apply their faculties to the performance of required duties without directing the particular action to be taken, a petition may be maintained by a municipality, which seeks reimbursement from the

Commonwealth under G.L.c. 132, Section 14, for a writ of mandamus requiring the auditor of the Commonwealth and the State forester to examine accounts and vouchers presented to them as the basis of a claim for such reimbursement and, if found correct, to approve them.

PETITION, filed in the Supreme Judicial Court for the county of Suffolk for a writ of mandamus directing the auditor of the Commonwealth and the commissioner of conservation and State forester "to accept and receive itemized accounts and vouchers from the petitioner" as to amounts expended by it in excess of $5,000 for the suppression of gypsy and brown tail moths, "to determine the correctness thereof and to approve the same."

The petition was reserved by Jenney, J., upon the pleadings and an agreed statement of facts for determination by the full court. Material facts are described in the opinion.

The case was submitted on briefs. L. Bryant, for the petitioner.

J. W. Allen Attorney General, & A.

C. York, Assistant Attorney General, for the respondents.

RUGG, C.J. This is a petition for a writ of mandamus by the town of Milton against the auditor of the Commonwealth and the commissioner of conservation and State forester. Salient facts are that the petitioner is a town in which one twenty-fifth of one per cent of the valuation of its real and personal property is more than $5,000; and that during the year ending November 30, 1920, it expended within its limits more than $5,000 in suppressing gypsy or brown tail moths on lands other than those under the control of the Commonwealth or in private ownership, save as otherwise provided in G.L.c. 132; and that such expenditure was made through its duly appointed superintendent under the advice and general direction of the State forester as to the method pursued. In January, 1920 the State forester notified the selectmen of the petitioner that it might be required to expend $5,000 in moth suppression for the year ending November 30, 1920, adding, "Should any further expenditure be necessary, the matter will be taken up with you at a future date." No further communication was had by the State forester with officers of the plaintiff as to the amount required to be expended, but the town expended a much larger sum.

It is provided by G.L.c. 132, Section 14 (which in this particular is the same in substance as the pre-existing statute and to which reference is made for convenience) that "When any city or town in which one twenty-fifth of one per cent of the assessed valuation of real and personal property is more, than five thousand dollars shall have expended within its limits city or town funds to an amount in excess of five thousand dollars in any one year ending November thirtieth in suppressing gypsy or brown tail moths, the Commonwealth shall reimburse such city or town to the extent of fifty per cent of such excess above said five thousand dollars."

The words of this section of the statute, according to the common and approved use of the language, are...