139 Mass. 372 | Mass. | 1885
The act of the Legislature incorporating the town of Wellesley provides that in case the towns of Needham and Wellesley shall not agree in respect to the division of the property or debts of the town of Needham, or in respect to the amount of money, if any, to be paid by the town of Wellesley to the town of Needham under the provisions of the sixth section of the act, commissioners shall be appointed by this court to
Commissioners were duly appointed, who have made their report. Several objections have been made to it, which we proceed to consider, so far as they are now insisted upon.
Section 6 provides, among other things, that “ the annual excess, if any, of maintaining the public schools, highways, and bridges in that part of the town of Needham remaining after the division of said town, as provided in this act, over and above the expense of maintaining the public schools, highways, and bridges in that part of Needham incorporated as the town of Wellesley, if not agreed upon by the selectmen of Needham and Wellesley, shall,” so far as the schools are concerned, “be ascertained by the commissioners provided for in section ten of this act, on the basis of the average number of scholars in the public schools of legal school age for the year eighteen hundred and eighty; .... and the town of Wellesley shall pay of such excess in the proportion which the valuation, real and personal, in the year eighteen hundred and eighty, of the part of Needham hereby incorporated as the town of Wellesley, bore to the valuation, real and personal, of the remaining part , of said town of Needham, and shall provide for, pay, and discharge the same as follows, to wit: the town of Wellesley shall pay to.the town of Needham a sum of money, the annual interest of which, at five per cent, shall equal in amount the part of such excess to be paid by the town of Wellesley.”
It seems to have been contemplated by the Legislature, that, by the division, the larger part of the taxable property of the town was included in Wellesley, while the larger part of the-burden of maintaining the public schools was thrown upon Need-ham, and the object of this section was to provide an approximate compensation to Needham for this inequality of burdens.
The Legislature adopted as the rule for equalizing the burdens of expense for maintaining schools, that the excess which fell upon Needham should be ascertained “on the basis of the average number of scholars in the public schools of legal school age for the year eighteen hundred and eighty.” The commissioners
The commissioners also ruled that the phrase in the statute, “ of legal school age,” includes all the members of the schools under the age of twenty-one years. We are of opinion that this ruling was correct. The Pub. Sts. e. 47, § 4, provide that “ all children within the Commonwealth may attend the public schools in the place in which they have their legal residence, subject to the regulations prescribed by law.” Under this provision all the residents of the Commonwealth under the age of twenty-one years, as soon as they have sufficient capacity, are entitled to attend the public schools, subject to such lawful regulations as may be made; and, by its natural meaning, the expression “ scholars of legal school age ” includes all those who are entitled to attend the public schools.
The respondent contends that it means scholars between the ages of eight and fourteen years. The statute upon which it relies provides that persons having the control of children between those ages may be compelled to send them to school for a certain portion of the year. Pub. Sts. o. 47, § 1. It does not fix the ages within which children may legally attend the public schools. It is, like the Pub. Sts. c. 48, in regard to children employed in manufacturing establishments, designed to compel the education of children, and not to fix a legal school age.
The same remark is true of the Pub. Sts. e. 43, upon which the respondent relies as establishing the legal school age as being between the ages of five and fifteen-years. This statute provides for the distribution of one half of the income of the school fund among the cities and towns in proportion to the number of persons between five and fifteen years of age belonging to each. It is no part of its purpose to provide what shall be the legal school age.
The commissioners rightly ruled that, in determining what was the excess of the cost of maintaining the schools in Need-ham, they could not take into account the grades of the different schools, or consider the fact that a larger proportion of the schools in Wellesley were of the grade of high schools, while a larger proportion of the schools in Needham were primary schools. The statute adopts an arbitrary rule, which was binding upon the commissioners. The excess was to be ascertained on the basis of the average number of scholars in the public schools, without regard to their grade. The commissioners had no right to depart from this basis, which probably the Legislature thought would work substantial justice between the two towns.
The commissioners rightly ruled that interest on the cost or value of the school-houses ought not to be included as part of the expense of maintaining the schools for the year 1880. By “the annual excess, if any, of maintaining the public schools, highways, and bridges,” the Legislature undoubtedly meant the amount expended annually, and did not intend to include interest on the cost of school-houses, any more than interest on the cost of the highways and bridges.
The question raised before the justice who heard the case, as to the few children who attended school out of the town in which they resided, was not argued before us, and we do not consider it.
The only remaining question is as to the time at which interest, if any, should begin to run on the amount which, by the report, Wellesley is to pay to Needham. The statute makes no provision as to interest. It fixes no time when Wellesley shall
The sum to be paid by Wellesley is not in payment of the property of Needham taken by Wellesley; it is in the nature of indemnity for the inequality produced by the division of the old town. The liability is purely a statutory liability, the amount of which is to be ascertained in the manner fixed by the statute. Upon the whole, it seems to us that, until the amount is determined, the town of Wellesley cannot be said to be in any default, and therefore that it should not be charged with interest. It does not seem to us that the commencement of this petition can be regarded as a demand which puts the respondent town in default. The petition is one of the steps for ascertaining the amount. It might be brought by either party, and it did not change the rights of the parties in respect to interest.
The result is, that the petitioner is entitled to interest from the final decree in this court; and that, in all other respects, the report of the commissioners is to be accepted and affirmed.
Judgment accordingly.