306 Mass. 249 | Mass. | 1940
This is a petition in equity under G. L. (Ter. Ed.) c. 40, § 53, by eleven taxpayers of the city of Cambridge. They seek to enjoin the respondents, constituting the board of assessors of said city, from assessing an annual tax for the current year, the amount of which shall include the aggregate appropriations requested and listed in a written document submitted by the acting mayor to the city council on February 27, 1940. The grounds alleged are that this document did not comply with the statutory requirements for the annual budget, and that, as no proper budget was submitted by the mayor to the city council and as the city council did not itself prepare a budget and make the necessary appropriations, then the assessors, in determining the amount of the tax to be assessed for the current year, must act as if no appropriations had been voted for the annual budget for the present year and should determine the tax by including in the amount to be assessed an amount equal to the aggregate appropriations voted in the annual budget
The petition alleges and the answer admits that the annual organization of the city government of Cambridge occurred on January 1, 1940; that the acting mayor on February 27,1940, submitted to the city council a document entitled “Mayor’s Recommendations Annual Budget Appropriations 1940,” which called for an appropriation of $6,775,387.61 and is therein referred to as exhibit A; that the city council never took any action on this document other than referring it to the committee on finance, which also took no action upon it. On or about February 27, 1940, a typewritten copy of an itemized and detailed statement, which treated as a unit each item appearing in exhibit A and set forth all the particular purposes included in said item for which an appropriation was needed, together with the specific amount required for each purpose, the total of such specific amounts equalling the amount of the item in every instance except three, was sent to the printer, and on March 19, 1940, each member of the council was furnished with a printed copy of this itemized and detailed statement, referred to in the record as exhibit C, calling for an appropriation of $6,774,602.61. After hearings upon the various items contained in exhibit C by the committee on finance, and a report by that committee to the city council recommending the adoption of an appropriation order for $6,-699,579.44 which included nearly all the items set forth in exhibit C, the council voted not to adopt such an order. The assessors intend to assess the annual tax by including therein the total amount of the items set forth in exhibit C.
The statute, G. L. (Ter. Ed.) c. 44, § 32, as amended by St. 1938, c. 175, § 1, in so far as material provides: “Within sixty days after the annual organization of the city government, in cities other than Boston not having the commis
The written statement, exhibit A, submitted by the acting mayor to the city council on February 27, 1940, contained seventy-two items opposite each of which a certain sum was set forth. The total of the sums listed amounted to $6,775,387.61. For example, after the word “Police”
The respondents contend that the itemized and detailed printed statement, exhibit C, which was furnished to the council on March 19, 1940, should be considered as a part of exhibit A, and that the two together comprised the budget which in all respects complied with the requirements of the statute. This contention is not sound. The terms of the statute, G. L. (Ter. Ed.) c. 44, § 32, are mandatory to the effect that the mayor shall submit the annual budget to the council within a designated time. Rea v. Aldermen of Everett, 217 Mass. 427. Milton v. Auditor of the Commonwealth, 244 Mass. 93. Elmer v. Commissioner of Insurance, 304 Mass. 194.
The preparation and submission of the budget are executive acts and the appropriation of the funds specified in the budget is a legislative function. In city governments, the former are the duties of the mayor and the latter is the obligation of the city council. Dooling v. City Council of Fitchburg, 242 Mass. 599. Feltham v. Springfield, 300 Mass. 193. Fortin v. Chicopee, 301 Mass. 447. If it were permissible for the mayor to submit to the city council a portion of the annual budget within the sixty-day period and the remainder of the budget so near to the tenth day of May, when the assessors- by virtue of G. L. (Ter. Ed.) c. 59, § 23, as amended by St. 1938, c. 175, § 2, are required to assess the annual tax, the city council might not have a fair opportunity to study the various items in the budget and to determine what appropriations should be made. The mayor could thus prevent the city council from exercising its power of appropriating whatever funds it deemed reasonable and necessary; and, by force of G. L. (Ter. Ed.) c. 44, § 32, as amended by St. 1938, c. 175, § 1, all items that the city council did not approve or disapprove on account of lack of time fully to consider them would become parts of the budget to the same extent as they would if they had been approved by
The city council referred exhibit A to its committee on finance, which was the council sitting as a committee of the whole, but neither the council nor this committee ever took any further action upon this exhibit A. This committee, after holding hearings upon various items contained in exhibit C, recommended to the city council the adoption of an appropriation order for the financial year January 1, 1940, to December 31, 1940, which order included substantially all the items included in exhibit C. On April 23, 1940, the city council voted not to adopt this appropriation order and has since taken no further action other than voting on April 26, 1940, not to reconsider its action taken on April 23,1940. The council never gave any consideration to any of the items contained in exhibit A, but considered exhibit C which, for reasons already stated, was never properly before the council. The council apparently, but erroneously, believed
It follows that the mayor did not submit any annual budget and that the council failed to prepare a budget and to pass the necessary appropriations. Consequently, the assessors have no right to assess, as they intend, the annual tax based upon their belief that the budget submitted by the acting mayor has become effective, but they are bound by the provisions of G. L. (Ter. Ed.) c. 59, § 23, as amended by St. 1938, c. 175, § 2, to disregard entirely the budget for 1940 and to include in their assessment an amount equal to the aggregate appropriations voted for the annual budget in 1939. What we have said is not to be interpreted as applying to items not required to be included in the budget as a basis for the assessment of taxes. A decree is to be entered restraining the respondents from assessing taxes on real or personal property located in Cambridge and subject to local taxation, on the basis of any items appearing either in the document submitted by the acting mayor to the city council on February 27, 1940, or in the itemized and detailed statement transmitted to the city council on March 19, 1940. Neither party is to have costs.
Ordered accordingly.