Sch. Comm. of City of Lowell v. Mayor of City of Lowell

• Decision Date: 12 December 1928
• Citation: 265 Mass. 353,164 N.E. 91
• Parties: SCHOOL COMMITTEE OF CITY OF LOWELL v. MAYOR OF CITY OF LOWELL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

265 Mass. 353

164 N.E. 91

SCHOOL COMMITTEE OF CITY OF LOWELL

v.MAYOR OF CITY OF LOWELL et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Dec. 12, 1928.

Case Reserved and Report from Supreme Judicial Court, Middlesex County.

Petition for mandamus by the School Committee of the City of Lowell against the Mayor of the City of Lowell and others. On reservation and report. Petition dismissed.

H. Parker, of Boston, and Hugh F. Downey, of Lowell, for petitioners.

J. P. Donahue and J. E. O'Donnell, both of Lowell, for respondents.

RUGG, C. J.

[1][2] The reservation in this case is informal. That has been pointed out in several decisions. We treat it as the parties have treated it, as intended to report to this court questions of law that arose at the hearing. That was all that properly could be reserved or reported. Scanlon v. Carey, 207 Mass. 285, 286, 93 N. E. 697;Boucher v. Members of Salem Rebuilding Commission, 225 Mass. 18, 19, 113 N. E. 575; Salisbury Beach Associates v. Assessors of Salisbury, 225 Mass. 399, 400, 114 N. E. 675;Duffey v. School Committee of Hopkinton, 236 Mass. 5, 9, 127 N. E. 540;Soper v. Wheeler, 239 Mass. 327, 329,130 N. E. 46;Hunter v. School Committee of Cambridge, 244 Mass. 296, 297, 138 N. E. 382;Moustakis v. Hellenic Orthodox Society, 261 Mass. 462, 159 N. E. 453. That question of law is whether, upon the pleadings and agreed facts, as matter of law, the writ of mandamus ought to issue.

The material facts as agreed are these: The City of Lowell is governed by plan B charter, G. L. c. 43, §§ 1-45, both inclusive, sections 56-63, inclusive, which became effective in Lowell on or about January 1, 1923, and also by St. 1921, c. 383, so far as the same is not inconsistent with plan B. By St. 1926, c. 297, which took effect on April 30, 1926, there was established a finance commission for the city of Lowell to consist of three persons appointed by the Governor. It there was provided by section 2 that ‘The various departments and officers of the city shall submit in detail to the commission on its request all requests for appropriations. The commission shall, after investigation, make up in conformity to law the annual and supplementary budgets of said city which shall be submitted to the mayor in season to be submitted by him to the city council as required by the charter of said city. The mayor may increase or reduce any item included therein giving his reasons in writing therefor and he shall submit the same to the city council which may reduce but not increase any item included therein.’ Pursuant to this section the school committee of Lowell made request for the appropriation needed for the support of public and vocational schools for the year 1928. This was substantially reduced by the finance commission. The mayor in submitting his budget to the city council recommended an appropriation in excess of the recommendation of the finance commission but less than the amount requested by the school committee. The city council voted an appropriation of $1,395,069.85, which was $66,463.75 less than the estimate of the school committee, $49,344.85 in excess of the recommendation of the finance commission, and $43,655.15 less than the recommendation of the mayor. Request by the school committee for a supplementary appropriation was reported unfavorably by the finance commission and this request was not voted by the city council. Thereupon the school committee brought this petition against the mayor, the members of the city council, the members of the finance commission, and the city of Lowell, setting out in substance that the petitioners had determined that the original estimate made by them was necessary for the maintenance of public schools in the city for the year 1928 and that the officers of the defendant city have refused to make adequate appropriation as requested, and praying that the writ of mandamus issue to require such appropriation to be made.

[3] The respondents urge that the petitioners cannot maintain this petition for the extraordinary relief afforded by mandamus. They invoke the principle that where another appropriate and effectual remedy is available to the petitioners the writ of mandamus will not issue. That principle is well established. Daly v. Mayor of Medford, 241 Mass. 336, 339, 135 N. E. 307, and cases there cited. Gardner Trust Co. v. Whitehall Corp., 260 Mass. 239, 241, 157 N. E. 519. In support of this contention, the respondents rely on G. L. c. 71, § 34, whereby it is providedthat ‘Towns shall raise by taxation money necessary for the support of public schools as required by this chapter. For refusal or neglect so to do a town shall forfeit to the county an amount equal to twice the highest sum ever before voted for the support of the schools in the town. * * * There fourths of any forfeiture so recovered shall be paid by the county treasurer to the school committee * * * of the delinquent town, who shall expend it for the support of the schools thereof as if regularly appropriated by the town therefor.’ The word ‘town’ as used in this section includes city. G. L. c. 4, § 7, cl. 34. The substantial forfeiture thus imposed is to ‘be prosecuted for and recovered by indictment or complaint or by an action of tort in the name of the commonwealth. * * *’ G. L. c. 280, § 1. Smith v. Look, 108 Mass. 139. See Commonwealth v. Sheffield, 11 Cush. 178. It is apparent that the remedy thus provided is not directly available to the petitioners. It is a remedy in the name of the commonwealth. In its nature it is a penal statute. In substance it has existed continuously from colonial days as one of the means adopted to assure general education of youth. This remedy is dependent either upon complaint or indictment to be enforced by or under the direction of the prosecuting officer according to criminal procedure or upon civil action of tort in the name of the commonwealth to recover the penalty. These methods of relief are essentially different from provisions of law for hte institution, trial, and judgment of a petition for a writ of mandamus. Kelley v. Boston & Maine Railroad...