Selectmen of Sterling v. Governor

• Citation: 317 N.E.2d 209,2 Mass.App.Ct. 597
• Parties: SELECTMEN OF STERLING v. The GOVERNOR et al.
• Decision Date: 09 October 1974
• Court: Appeals Court of Massachusetts

Page 209

317 N.E.2d 209

2 Mass.App.Ct. 597

SELECTMEN OF STERLING v. The GOVERNOR et al.

Appeals Court of Massachusetts, Worcester.

Argued Oct. 17, 1973.

Decided Oct. 9, 1974.

Edward J. Reynolds, Sp. Asst. Gen., for the Governor and others.

Thomas J. Donahue, Jr., Worcester, for Bd. of Selectmen of Sterling.

Before ROSE, KEVILLE and GOODMAN, JJ.

GOODMAN, Justice.

This petition for a writ of certiorari was brought by the board of selectmen of the town of Sterling (petitioner) against the Governor and the members of the Executive Council (respondents) to quash their decision awarding 'veterans' benefits' (G.L. c. 115, § 1) pursuant to G.L. c. 115, § 5, which provides for payments to a veteran of 'such amount . . . as may be necessary to afford him sufficient relief or support.' ¹ The award was made upon an appeal from a determination of the Commissioner of Veterans' Services (commissioner) under G.L. c. 115, § 2. The veteran had applied 'for assistance with payments on the arrearage of his mortgage' and the commissioner directed a payment 'to forestall the foreclosure of the mortgage deed to his home.' ² The Superior Court ordered that the decision of the respondents be quashed, and they appealed. ³ We reverse.

The respondents filed a return which consists primarily of a letter from the commissioner transmitting a 'Report for Governor and Executive Council.' The return does not purport to contain all the evidence or findings of fact on which the decision was based (contrast Lawrence v. Commissioners of Pub. Works, 319 Mass. 700, 702, 67 N.E.2d 482 (1946); BUNTE V. MAYOR OF BOSTON, --- MASS. ---, 278 N.E.2D 709 (1972)^A), and no attempt was made to extend that return. Attorney Gen. v. Board of Pub. Welfare of Wilmington, 328 Mass. 468, 471, 104 N.E.2d 496 (1952). DiRado v. Civil Serv. Commn., 352 Mass. 130, 132, 224 N.E.2d 193 (1967). See Southwick Birds & Animals, Inc. v. County Commrs. of Worcester County, --- Mass. ---, n. 1, ^b 273 N.E.2d 581 (1971). Additional documents were supplied by the commissioner on order of the Superior Court pursuant to the petitioner's motion for 'extension of the record,' but they do not aid the petitioner for there is nothing to indicate that they were before the respondents. Such documents are therefore not before us; the only question for our determination on the record in this case is whether an error of law appears on the face of the return of the respondents. Adamsky v. City Council of New Bedford, 326 Mass. 706, 707, 96 N.E.2d 236 (1951). Kidder v. City Council of Brockton, 329 Mass. 288, 289, 197 N.E.2d 774 (1952). See BENNETT V. BOARD OF ALDERMEN OF CHELSEA, --- MASS. --- , 282 N.E.2D 669 (1972)^C.

The respondents' return shows nothing of substance other than that the respondents awarded the veteran an amount sufficient to cover past due monthly mortgage payments on his home, at least some of which fell due prior to his application for relief under G.L. c. 115. The petitioner contends that the payment of such amounts is, as a matter of law, contrary to the provision in G.L. c. 115, § 5, that '(n)o payment of benefits shall be made for any period prior to the date of application' and, therefore, that the decision was properly quashed. We disagree. '(R)elief or support' in G.L. c. 115, § 5 (see fn. 1) is part of a 'comprehensive aid program' (Cambridge v. Commissioner of Pub. Welfare, 357 Mass. 183, 188, 257 N.E.2d 782 (1970)) and is to be construed '(in a) liberal and beneficent spirit' (Worcester v. Quinn, 304 Mass. 276, 278, 23 N.E.2d 463, 464 (1939)). See Millis v. Frink, 213 Mass. 350, 352--353, 100 N.E. 626 (1913); Sutherland, Statutory Construction (4th ed.), § 71.08. The phrase obviously includes at least 'food, shelter, and necessities to a needy family.' See Cohasset v. Scituate, 309 Mass. 402, 409, 34 N.E.2d 699 (1941).

The provision relied on by the petitioner does indeed eliminate from the needs which may be provided to a veteran relief from indebtedness for past shelter and confines the shelter which may be provided to current shelter. However, that does not limit the method by which current shelter may be furnished, and we cannot say as a matter of law that the payment of arrearages to prevent foreclosure on a home would be error. So to hold we would have to declare that under no circumstances could such payments be a reasonable way of providing current shelter to a veteran, in preference to furnishing him with new lodgings. This we are unable to say. See Matter of Veit v. Barbaro, 59 Misc.2d (N.Y.) 117, 120--121, 298 N.Y.S.2d 251 (1969). Matter of LeGodais v. Barbaro, 60 Misc.2d (N.Y.) 988, 989--990, 304 N.Y.S.2d 476 (1969). Since it is not apparent from the return just what the circumstances were, the petitioner has not made out a case on the face of the return that an error of law has been committed, and it therefore cannot prevail.

Our disposition of this case makes it unnecessary to deal further with the question not raised by the respondents, whether and to what extent Rice v. The Governor, 207 Mass. 577, 93 N.E. 821 (1911) (holding that mandamus does not lie against the governor) has any application to this case. See Sampson v. Treasurer & Receiver-General, 282 Mass. 119, 121, 184 N.E. 465 (1933).

The petitioner has not raised any question as to whether the Council's role in granting veterans' benefits under G.L. c. 115, § 2, was terminated by St.1964, c. 740, entitled 'An Act repealing statutory powers of the Governor's Council which interfere with the efficient operation of the Executive Department of the Commonwealth.' See OPINION OF THE JUSTICES, --- MASS. ---, 274 N.E.2D 336 (1971)^D in which the justices stated that c. 740 excluded the Council from the power formerly lodged in the 'Governor and Council' to take land by eminent domain but indicated that '(t)here may exist a distinction between action 'by the Governor and Council,' acting as a single agency, and action by the Governor 'with the advice and consent of the Council' . . . (t)he form of words used in the statute . . . not conclusively determin(ing) which type of action is contemplated.'

Nor does the record indicate the 'type of action' involved in this case, or the relationship of the Governor vis-a-vis the members of the Council in the decisional process. The burden was on the petitioner to show that of the possible 'type(s) of action' (including that provided in St.1964, c. 740, § 5) the Governor and Council chose one that was prejudicially irregular or deprived them of jurisdiction. See Morrissey v. State Ballot Law Comn., 312 Mass. 121, 125, 43 N.E.2d 385 (1942). Contrast Commissioner of Corps. & Taxn. v....