Troland v. City of Malden

• Decision Date: 04 March 1955
• Citation: 332 Mass. 351,125 N.E.2d 134
• Parties: Ethel M. TROLAND et al. v. CITY OF MALDEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 134

125 N.E.2d 134

332 Mass. 351

Ethel M. TROLAND et al. v. CITY OF MALDEN.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Jan. 3, 1955.

Decided March 4, 1955.

A. Kenneth Carey, Danvers, John D. O'Reilly, Boston, with him, for petitioners.

Bernard Kaplan, Malden, for respondents.

Before QUA, C. J., and LUMMUS, WILKINS, SPALDING and COUNIHAN, JJ.

SPALDING, Justice.

This petition is brought under G.L. (Ter.Ed.) c. 71, § 34, as appearing in St.1939, c. 294, by more than ten taxable inhabitants of the city of Malden to determine the amount of an alleged deficiency in the appropriation by the city for the support of its public schools for the year 1951; to obtain an order commanding the city and its officers, whose action may be necessary, to provide a sum of money equal to such deficiency together with a sum equal to twenty-five per cent thereof; and for a declaration under G.L. (Ter.Ed.) c. 231A, § 6, inserted by St.1945, c. 582, § 1, that a referendum petition and the vote thereon on May 8, 1951, are of no legal effect. The respondent's demurrer to the petition was overruled by an interlocutory decree. Following a hearing on the merits, a final decree was entered which established a deficiency in the amount of $143,707 and ordered the city to provide this sum together with the further sum of $35,926.75 by borrowing as provided in G.L. (Ter.Ed.) c. 71, § 34. The decree also adjudged that the referendum vote of May 8, 1951, was of no legal effect. From the interlocutory decree overruling the demurrer and from the final decree, the respondent appealed. The evidence is reported and the judge made findings of material facts.

The facts are these: On December 29, 1950, the school committee of the city of Malden voted to submit to the mayor its estimate of the amount deemed necessary by it for the support of the schools for the year 1951. The amount estimated was $1,666,213. This amount was made up of nine items but the only one in dispute was that entitled 'Instruction' which embraces 'Personal Services' and 'Maintenance.' The amount estimated and requested for 'Instruction' was $1,320,192 of which $1,252,942 was for 'Personal Services.' ¹ The present controversy has to do only with that part of the 'Instruction' estimate which relates to 'Personal Services.' On January 5, 1951, the estimate was transmitted to the major who refused to include that amount in the budget for 1951, and pursuant to St.1950, c. 29, presented to the school committee a petition signed by more than the required number of registered voters protesting the estimate. The petition read as follows: 'Whereas, the School Committee of the City of Malden voted on December 29, 1950 to requisition the City Malden to appropriate in its annual budget in 1951 the sum of $1,666,213.00, for school salaries and other school purposes, and whereas, the said requisition contained an item 'Instruction, Personal Services $1,260,084.00' and whereas, said item is $155,549.00 more than was appropriated by the City for the same purpose in 1950, Therefore, we the undersigned registered voters of the City of Malden do hereby protest against that part of the requisition containing said item of 'Instruction, Personal Services $1,260,084.00' from taking effect, and respectfully request the School Committee to reconsider the above item, and rescind the same, and if not, that the same be submitted to a vote of the registered voters of the City.'

At a special meeting of the school committee on February 8, 1951, the committee voted 'To rescind the amount of $1,252,942 which is the correct amount voted by the School Committee for Instruction Personal Services for the 1951 budget, instead of $1,260,084 referred to in the referendum petition; and the * * * Committee substitutes therefor the sum of $1,248,242 for Instruction Personal Services for 1951, making a total budget for the School Department for the year 1951 of $1,661,513.'

Pursuant to St.1950, c. 29, a special election was held on May 8, 1951, to vote on the question 'Shall that part of the vote of the School Committee taken on 12/29/50 requesting the City to appropriate $1,260,084.00 for 'Instruction Personal Service' (said item being $155,549.00 more than was appropriated by the City for the same purposes in 1950) be approved?' The result of the vote was that this item be disapproved, 5,924 voting 'yes' and 7,402 voting 'no.'

The judge found that the school committee 'did not request the city to appropriate $1,260,084 for Instruction--Personal Service' and that that figure was not the amount included in its vote of either December 29 of February 8. He ruled that the referendum of May 8, was of no legal effect.

It is not disputed--and the judge found--that the amount appropriated by the city for 'Instruction Personal Services' for 1951 was $1,104,535 and that this was $143,707 less than the amount estimated and requested by the school committee after its deduction of $4,700 by its vote on February 8.

The demurrer contains several grounds but the only one now relied on is that in view of St.1950, c. 29, amending the city's charter, St.1881, c. 169, the petitioners have no right to invoke the remedy provided by c. 71, § 34. The pertinent provisions of St.1950, c. 29, are: 'If, within twenty days after the final passage of any measure, except a revenue loan order, by the city council or by the school committee, a petition signed by registered voters of the city, equal in number to at least twelve per cent of the total number of registered voters, is presented to the city council or to the school committee, as the case may be, protesting against such measure, or any part thereof, taking...