Pirrone v. City of Boston

• Decision Date: 17 December 1973
• Parties: Philip A. PIRRONE et al. v. CITY OF BOSTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 96

305 N.E.2d 96

364 Mass. 403

Philip A. PIRRONE et al. v. CITY OF BOSTON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 3, 1973.

Decided Dec. 17, 1973.

John F. McMahon, Boston, for plaintiffs.

Thomas H. Martin, Asst. Corp. Counsel (Herbert P. Gleason, Corp. Counsel, Boston, with him) for the City of Boston and others.

Before TAURO, C.J., and BRAUCHER, HENNESSEY, KAPLAN, and WILKINS, JJ. TAURO, Chief Justice.

The plaintiffs appeal from an interlocutory decree sustaining the defendants' demurrer and from a final decree dismissing their bill.

The plaintiffs are eleven taxable inhabitants of the city of Boston. Pursuant to G.L. c. 71, § 34, as appearing in St.1939, c. 294, ¹ they sought in the Superior Court a determination that the annual budget appropriations of the city of Boston for the fiscal years 1970 and 1971 did not include the amounts 'necessary . . . for the support of . . . (Boston's) public schools.' Central to the reasons for the demurrer is the argument that school expenditures in Boston are controlled by statutes other than G.L. c. 71, § 34, and that therefore a bill under this statute does not lie.

The plaintiffs' bill contains four counts, ² each count purportedly stating a separate ground for relief under § 34 of c. 71. The first count alleges a deficiency in the funds appropriated in the fiscal years 1970 and 1971 for the Boston schools in that no sufficient amount was appropriated to fund the provisions of certain collective bargaining agreements between the school committee and the Boston Teachers Union. Counts 2, 3 and 4 all relate to the duty (St.1936, c. 224) of the defendant auditor of the city of Boston (city auditor) to certify to the school committee the amount of funds available for the committee's direct appropriation, each count alleging a separate defect in the auditor's certifications for the fiscal years 1970 and 1971. For purposes of this appeal, counts 2, 3 and 4 raise a single issue of law and shall therefore be considered together.

The defendants' demurrer sets forth three grounds. The first, addressed to all four counts of the bill, is '(t)hat the plaintiffs have not stated in their bill such a cause as entitles them to any relief in equity . . ..' The other two grounds are that certain specified paragraphs in counts 2, 3 and 4 of the plaintiffs' bill are 'vague, indefinite and inadequate' and are 'argumentative, state conclusions of law, and do not sufficiently or specifically set forth facts.' As will be clear, there is no need for us to consider these latter two grounds set up by the demurrer. We therefore treat this as a general demurrer, addressed to the bill as a whole on the ground of want of equity. See Baker v. Paeff, 318 Mass. 366, 61 N.E.2d 650 (1945). The decree sustaining the demurrer may be upheld only if the plaintiffs' bill fails to set out any cause of suit under G.L. c. 71, § 34. ³ O'Connor v. Brockton, 308 Mass. 34, 36, 30 N.E.2d 842 (1941). We conclude that it does not and that the demurrer was properly sustained.

We now review the pertinent statutory and case law background. The system for financing the public schools of the city of Boston is a product of 'a long series of acts' which constitute 'a comprehensive statutory system applicable to school finances in Boston.' Collins v. Boston, 338 Mass. 704, 708, 157 N.E.2d 399, 403 (1959). The keystone of that statutory scheme is St.1936, c. 224, which has many times been amended. ⁴ In brief outline, the pertinent sections of the statute empowr the school committee of the city of Boston (school committee), by itself, to make appropriations for 'school purposes' to be raised by taxation. § 2, as amended. Such appropriations are to be made pursuant to a four-fifths vote, and by the same majority the school committee may override any mayoral veto of the amounts thus appropriated. § 3, as amended. The school committee certifies the appropriations it has made to the board of assessors, who must include them in the annual levy. § 3, as amended. The amount which may be appropriated directly by the school committee is not unlimited, however. Such amount may not exceed a dollar figure which is determined according to a statutory formula ⁵ and certified to the school committee by the city auditor. § 2B. Any funds in excess of that maximum would have to be appropriated by the city council with the mayor's approval. § 2. ⁶

This school financing system in Boston is unique in the Commonwealth. The usual practice outside of Boston is for the local school committee, which has no appropriation power, to determine the annual school budget and then to request the necessary appropriation from the city council or town meeting. See Casey v. Everett, 330 Mass. 220, 223, 112 N.E.2d 420 (1953). The Legislature has required that every city and town must provide the funds necessary for the support of local schools, and has authorized the device of the ten taxpayer suit as a means of enforcing that requirement. G.L. c. 71, § 34. This court has consistently interpreted § 34 as permitting no discretion to the local appropriating authority to reduce the total amount of funds which has been determined by the school committee to be necessary for school purposes. See, e.g., Casey v. Everett, supra, and cases cited. In other words, the city council or town meeting must appropriate the full amount requested by the school committee (at least to the extent such funds are 'necessary' for c. 71 purposes); if it fails to do so, a ten taxpayer bill may properly be brought and the court will require that the difference between the amount requested and the amount appropriated (plus a twenty-five per cent add-on) be made up, either by further appropriation or by borrowing. Ring v. Woburn, 311 Mass. 679, 43 N.E.2d 8 (1942). ⁷ No case involving the city of Boston, however, has ever been decided on a ten taxpayer bill under G.L. c. 71, § 34. Thus, this court has never addressed the question whether the unique division of responsibilities in the Boston school financing system may be reconciled with the mandate of school committee supremacy implicit in § 34. ⁸

We first hold that the demurrer was properly sustained as to counts 2, 3 and 4 of the bill. The substance of those counts is that, for the years in question, the city auditor failed properly to determine the amounts to be certified to the school committee pursuant to c. 224, §§ 2, 2B. The plaintiffs attempt to bring these allegations within the scope of G.L. c. 71, § 34, by contending that the amounts as determined by the city auditor were less than they would have been had he fully complied with the statute, and that therefore there was a 'deficiency' in the amount available for appropriation by the school committee in each year.

The remedy provided by § 34 is explicitly directed at deficiencies in amounts actually appropriated for school purposes. Because in Boston it is the school committee which actually appropriates the certified amount, it would appear that the proper defendant under § 34 as to counts 2, 3 and 4 would have to be the school committee, not the city auditor. In addition, as discussed above, the traditional application of § 34 has been in situations where a local school committee has determined the 'necessary' amount of funds and the local appropriating authority has failed to provide that amount, so that the determination of the 'deficiency' by a court is merely a matter of subtraction. Quite clearly § 34 has no application to the certification made by the Boston city auditor under St.1936, c. 224, since that certification involves neither a determination of necessary funds by a school committee nor an appropriation of funds by an appropriating authority. The ten taxpayer bill was not intended as a general remedy for the failure of public officials correctly to perform ministerial duties. If the city auditor has failed to perform his statutory duties, the proper remedy is a petition for a writ of mandamus brought by the school committee. ⁹ Even assuming that the G.L. c. 71, § 34, remedy is applicable to the city of Boston (see discussion below), no cause of suit under that statute was made out by counts 2, 3 and 4 of the plaintiffs' bill.

We now turn to a consideration of the first count of the plaintiffs' bill. The defendants have argued that their demurrer to this count was properly sustained on either of two grounds: the remedy of the ten taxpayer bill provided by G.L. c. 71, § 34, has no application in the city of Boston and, even if it is applicable, the plaintiffs' bill is insufficient in that it fails to allege any request for funds by the school committee. Because we decide that a bill under § 34 will not lie against the city of Boston, we need not discuss the sufficiency of the plaintiffs' allegations.

The plaintiffs forcefully contend that the city of Boston is subject to the same duty to support public schools as is every other Massachusetts city and town. We have no doubt that this is so. But the issue before us is not whether Boston must support public schools. Indeed, it is not even a question of how much support those schools are to receive. Rather, it is a question of who is to determine how much support the schools are to receive. For the cities and towns of Massachusetts other than Boston '(i)t is apparent that the Legislature intended to entrust the care and operation of the public schools . . . to the school committee.' Ring v. Woburn, 311 Mass. 679, 694, 43 N.E.2d 8, 16 (1942). The ten taxpayer bill of § 34 is the means by which absolute school committee discretion as to budgetary decision is ensured. As to Boston, however, the Legislature has evidenced a somewhat different intent as to the amount of budgetary discretion to be vested in the school committee.

The school committee is empowered to appropriate funds for school purposes up to a certain limit. That limit is, essentially, an amount equal to...