Kimball v. City of Salem

111 Mass. 87

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1872
• Status: Published

Opinion

Wekls, J.

This suit is brought for services actually rendered by the plaintiff to the city, under the authority and by the express direction and approval of the school committee. It does not, therefore, necessarily raise the question whether his appointment created a contract for a year, which he could have enforced if his services had been dispensed with. Chase v. Lowell, 7 Gray, 33.

The school committee are officers of the city; in many respects having independent authority to bind the city by their acts and contracts. The general charge of the schools is intrusted to them, with large discretion. They appoint the superintendent, when one is to be appointed, and determine his salary; and he acts under their direction and control. Gen. Sts. c. 38, § 35.

* St. 1870, c. 117.

Whether they may appoint a superintendent without the vote of a town or ordinance of a city requiring it, we need not now determine; because this appointment was made in pursuance of an ordinance ; and we are of opinion that the repeal of the ordinance did not affect the validity of the appointment for the term for which it was originally made.

The duty or authority of the school committee, under the vote of a town or ordinance of a city, is one which is to be performed or exercised by them annually. The statute manifestly contemplates an appointment for the year ; and not from time to time, at the discretion of either branch of the municipal government. The office of superintendent of schools is one that is recognized by the statutes; it is not created by the ordinance. The ordinance does no more, whatever its form, than to confer a power. That power, when once legally exercised, is effectual for the entire year for which it is originally given. Neither the town nor the city council retain any further control over the matter.

In this case, the power having been legally exercised by the school committee at the beginning of the year, the subsequent repeal of the ordinance did not affect the validity or duration of the appointment made under it.

Judgment for the plaintiff.

“Any town annually by legal vote, and any city by an ordinance of the city council, may require the school committee annually to appoint a superintendent of public schools, who, under the direction and control of said committee, shall have the care and supervision of the schools, with such salary as the city-government or town may determine; and in every city in which such ordinance is in force, and in every town in which such superintendent is appointed, the school committee shall receive no compensation, unless otherwise provided by such city government or town.”