WILLIAM V. WARD vs. COMPTROLLER OF THE COMMONWEALTH & another (and a companion case ).

WILLIAM V. WARD vs. COMPTROLLER OF THE COMMONWEALTH & another (and a companion case [Note p183-1]).

345 Mass. 183

November 9, 1962 - December 3, 1962

Suffolk County

Present: WILKINS, C.J., WHITTEMORE, CUTTER, KIRK, & SPIEGEL, JJ.

In declaratory proceedings, to which the Comptroller of the Commonwealth was a party, involving the question whether an opposing party was receiving more than one salary from the treasury of the Commonwealth

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in violation of G. L. c. 30, Section 21, the Commonwealth was an interested and necessary party whose rights were not fully represented by the Comptroller, and since it had not consented to being made a party the proceedings must be dismissed. [185-186, 187]

Compensation paid by the Metropolitan Transit Authority, "a body politic and corporate and a political subdivision of the" Commonwealth created by St. 1947, c. 544, to one of its trustees who was also a salaried employee of the Commonwealth was not paid "from the treasury of the" Commonwealth and there was no violation of G. L. c. 30, Section 21, even though money advanced by the Commonwealth to the Authority on account of deficits was deposited in the general funds of the Authority and used to pay its expenses including the trustees' compensation. [186-187]

TWO BILLS IN EQUITY, one filed in the Superior Court on February 2, 1962, and the other filed in the Supreme Judicial Court for the county of Suffolk on February 5, 1962, and transferred to the Superior Court.

The suits were heard by Morton, J.

Samuel W. Gaffer (Henry H. Chmielinski, Jr., Special Assistant Attorney General, with him) for the Comptroller of the Commonwealth.

Joseph S. Ayoub, Assistant Attorney General (I. Louis Fine with him), for the Director of the Division of Employment Security.

John R. Kewer (John M. Hogan with him) for William V. Ward.

WILKINS, C.J. These are two bills for declaratory decrees to ascertain the effect of G. L. (Ter. Ed.) c. 30, Section 21, which reads, "A person shall not at the same time receive more than one salary from the treasury of the commonwealth." The principal issue argued is whether Ward, the plaintiff in the first case and the defendant in the second, is receiving two salaries in violation of the statute. Ward holds two positions. (1) He is an employment office manager in the division of employment security. This is a position within the classified civil service, G. L. c. 31, and he is a permanent incumbent. (2) He is a trustee of the Metropolitan Transit Authority, appointed by the Governor with the advice and consent of the Council under St. 1947, c. 544, Section 2 (as amended by St. 1953, c. 197, Section 1, and St. 1955, c. 725, Section 2).

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In the first case the defendants are the Comptroller and the director of the division of employment security. On January 30, 1962, the Comptroller wrote a letter to the director stating his opinion that Ward was not entitled to receive compensation as employment manager while serving as trustee and directing that no further payments be made to him. The defendant director stopped payments as a result of the letter. The trial judge ruled that Ward is entitled to retain his position as employment office manager in the division of employment security and to receive compensation for such services while he holds the office of trustee of the Metropolitan Transit Authority and receives compensation from the Authority. From a final decree to this effect the Comptroller and the director appealed.

In the second case the trial judge, relying upon G. L. (Ter. Ed.) c. 30, Section 22, [Note p185-1] ruled that the Attorney General, and not the Comptroller, was the proper party to bring suit. From a final decree dismissing the bill, the Comptroller appealed.

"When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding." G. L. c. 231A, Section 8. Harvey Payne, Inc. v. Slate Co. 342 Mass. 368 , 370. It is obvious that the Commonwealth is an interested party to any declaration. Its rights are not fully represented by the Comptroller, whose powers are set forth in G. L. c. 7, Section 13 (as amended through St. 1950, c. 272), which provides: "The comptroller shall examine all accounts and demands against the commonwealth [with exceptions presently immaterial] . . .. He may require affidavits . . .. The comptroller shall make a certificate specifying the amount due and allowed on each account or demand so examined, the name of the person to whom such

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amount is payable, and the account to which it is chargeable; and if it appears to him that there are improper charges in said accounts or demands he shall report the same to the governor and council, with a separate certificate therefor. He shall keep copies of all such certificates and transmit the originals to the governor, who, with the advice and consent of the council, may issue his warrant to the state treasurer for the amount therein specified as due." It is clear that the Comptroller himself has no authority to direct the withholding of payments. If he thinks that some charge is improper, it is then his function to report it to the Governor and Council. This is entirely consistent with G. L. c. 29, Section 18 (as amended through St. 1953, c. 263, Section 2). [Note p186-1]

The Commonwealth has not consented to be made a party to declaratory proceedings under c. 231A. Executive Air Serv. Inc. v. Division of Fisheries & Game, 342 Mass. 356 , 358. In the second case, to be sure, it has been admitted in the pleadings and the judge has found that a controversy exists between Ward and the Comptroller. But the Commonwealth is a necessary party. Any declaration which might be made would not terminate that controversy. Kilroy v. O'Connor, 324 Mass. 238 , 242-243. Morgan v. Banas, 331 Mass. 694 , 698. Harvey Payne, Inc. v. Slate Co. 342 Mass. 368 , 370. See G. L. c. 231A, Section 3.

This is, however, an appropriate occasion to state our views on the merits, which have been fully argued. Wellesley College v. Attorney Gen. 313 Mass. 722 , 731. Massachusetts Charitable Mechanic Assn. v. Beede, 320 Mass. 601 , 609. Vautier, petitioner, 340 Mass. 341 , 344-345.

The Authority is "a body politic and corporate and a political subdivision of the commonwealth" created by St. 1947, c. 544, Section 1, which became effective on June 19, 1947. Boston Elev. Ry. v. Metropolitan Transit Authy. 323 Mass. 562 , 565. There was no such political subdivision under Spec. St. 1918, c. 159, "An Act to provide for the public

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operation of the Boston Elevated Railway Company." Consequently, statements as to that statute are without present relevance. See, for example, Opinion of the Justices, 309 Mass. 609 , 620-624.

The salary paid to Ward by the Metropolitan Transit Authority is not a payment from the treasury of the Commonwealth. The argument that it is so paid is founded upon the method of financing the substantial deficits of the Authority. Pertinent findings of the judge are these. Ward's salary as trustee has been paid out of the general funds of the Authority, which from time to time in each year since 1947 has sent notices to the Treasurer of the Commonwealth certifying a deficit. See St. 1947, c. 544, Section 13, as amended by St. 1949, c. 572, Section 5; Section 13A, inserted by St. 1954, c. 409, Section 1. Amounts paid by the Commonwealth to the Authority as advances on account of deficits for 1961 have not as yet been assessed upon the cities and towns placed within the territory of the Authority by St. 1947, c. 544, Section 1. Such assessments and payments are governed by G. L. c. 59, Section 20 (as amended through St. 1946, c. 432, Section 1). The treasurer of the Authority has deposited all moneys received from the State Treasurer in the general funds of the Authority and used them to meet the cost of service which includes the salaries of the trustees.

The interlocutory decrees are affirmed. Since the Commonwealth cannot be made a party to the controversy, the final decree in the first case is reversed, and a new final decree is to be entered dismissing the bill; and the final decree in the second case is affirmed.

So ordered.

FOOTNOTES

[Note p183-1] The companion case is by the Comptroller against the plaintiff in the first case.

[Note p185-1] "Whoever wilfully violates the preceding section . . . shall forfeit to the commonwealth the compensation from all offices held in violation of said provisions during the time they are so held, to be recovered by the attorney general, upon written complaint made within one year by any citizen."

[Note p186-1] "Except as otherwise provided, no money shall be paid by the commonwealth without a warrant from the governor . . . and after the demand or account to be paid has been certified by the comptroller . . .."