act. The provision could not be more explicit or definite as to the amount appropriated. Until the damages are ascertained and adjudicated, the sum which will be required to pay them is necessarily uncertain. There is no provision of law which makes it requisite to the validity of an appropriation from the treasury of the Commonwealth that a specific sum should be named and set apart as a fund to meet a particular exigency. It is sufficient if by an act or resolve passed during the same or the preceding political year the payment is authorized. St. 1858, c. 1, §§ 1, 2; Gen. Sts., c. 15, §§ 30, 31. That such an appropriation affords a remedy sufficiently adequate and certain is too clear to admit of doubt. It is a pledge of the faith and credit of the Commonwealth, made in the most solemn and authentic manner, for the payment of the damages as soon as they are ascertained and liquidated by due process of law. Unless we can say that such a provision affords no reasonable guaranty that the persons injured will receive compensation, we cannot adjudge the statute to be unconstitutional. We certainly cannot assume that the Commonwealth will not fulfill its obligations. The presumption is directly the other way. Indeed, the plaintiffs do not aver in their bill that the damages which may be awarded to them under the act will not be duly paid. How, then, can it be said that no suitable and adequate provision is made in the act by which the plaintiffs can receive the compensation to which they may be entitled?”

The language of St. 1899, c. 469, so far as it relates to the payment of damages, is precisely similar to that contained in St. 1860, c. 211, § 3, which section was construed in the case above referred to as amounting to an appropriation of so much money as might be necessary to pay the damages assessed under the act. That case has not been overruled, but, on the contrary, the language above quoted was referred to with approval in the case of Connecticut River Railroad Co. v. County Commissioners, 127 Mass. 50, 55. Since the case of Talbot v. Hudson was decided no statutes have been passed which are now operative requiring that an appropriation from the treasury of the Commonwealth should be of a specific sum or in any other way affecting this

question. No other objection to the validity of the statute referred to in your letter appears.

I am, therefore, of opinion that St. 1899, c. 469, is constitutional; and that, so far as the question of the validity of this statute is concerned, your Board is not precluded from exercising the powers given to it thereby.

Westford Academy is a private school, and is "not under the order and superintendence of the authorities of the town" of Westford; and the State Board of Education may refuse to approve it, either for the purpose of authorizing the town of Westford to pay the tuition of children living therein and attending that academy, under St. 1895, c. 94, or for the purpose of securing to other towns reimbursement by the Commonwealth of money expended for the tuition of children in that academy, under the provisions of St. 1898, c. 496, § 3.

Strictly speaking, the duty of the Board is that of approval of an academy in respect to the grade of its work; but, as towns may not pay the tuition of pupils attending Westford Academy, the Board, in the exercise of its discretion, may withhold its approval of it for that reason.

Board of 1899

Your letter of June 10 encloses a copy of an indenture between To the State the town of Westford and the trustees of the Westford Academy, Education. and requests the opinion of the Attorney-General upon the fol- July 12. lowing questions:

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First. "Is it legal for the State Board of Education, either under the provisions of St. 1895, c. 94, or under the provisions of that act as supplemented by the aforesaid indenture, to approve Westford Academy for the purposes of said act, should it desire to do so?"

Second."Is it legal for the State Board of Education, either under the provisions of St. 1898, c. 496, § 3, or under the provisions of that section as supplemented by the aforesaid indenture, to approve Westford Academy for the purpose of insuring to towns the reimbursement of money expended for tuition in that academy?"

The statute referred to in your questions (St. 1895, c. 94) provides, in § 1, that: "Any town in which a high school is not

maintained, but in which an academy of equal or higher grade is maintained, may grant and vote money to pay the tuition of children residing in such town and attending such academy: provided, such academy is approved for that purpose by the state board of education."

On March 18, 1896, in response to an order of the Senate, I advised that honorable body that in my opinion the statute in question, in so far as it purported to authorize the payment of money by a town to an incorporated academy not under the control of the town, is in violation of Art. 18 of the Amendments to the Constitution, which provides in terms that "moneys raised by taxation in the towns and cities for the support of public schools . . . shall be . expended in no other schools than those which are conducted . . . under the order and superintendence of the authorities of the town or city in which the money is to be expended." 1 Op. Atty.-Gen. 319.

If I am correct in this opinion, it is necessary to ascertain, before answering your questions, whether Westford Academy is under the order and superintendence of the authorities of the town of Westford. If not, the town may not lawfully pay the tuition of its pupils.

All the authority and superintendence which the authorities of the town of Westford may exercise over Westford Academy is derived from the provisions of the indenture submitted with your letter. The only provisions affecting the question are the following:

"And it is further agreed that the said trustees [of the academy] shall provide a grade of education equal to that provided by high schools.

"And it is further agreed that, in order to determine whether or not the grade of education provided by the said trustees is, at any time, up to the said required standard, there shall be a Board consisting of three members, hereinafter called the Supervising Board; that one of these three members shall be appointed by and from the school committee of the said town of Westford, one by and from the said trustees, and, the third by the two members appointed in the foregoing manner, and who shall not be a member of either of said boards; that the term of office

of each member shall expire on the last day of June of each year; that, in case of the death or resignation of any member, a successor shall be appointed by the same parties that appointed the said members so deceased or resigning, and that a new Supervising Board shall be appointed at the last of June each year."

"And it is further agreed that the superintendent of schools of said town of Westford shall superintend the methods of education employed in said academy, and the results obtained and all matters appertaining in any way to his connection with the academy shall be reported to the said Supervising Board at his desire or their call, and shall also be included in his report to the town each year. In case of controversy, the Supervising Board to decide and adjudge and fully settle all points and differences."

It is obvious that the above provision for a Supervising Board consisting of three members, only one of whom is selected by the school committee of the town, does not give to the authorities of the town the order and superintendence of the school. The provision that the town superintendent of schools shall superintend "the methods of education employed in said academy" also fails, in my opinion, to put the institution under the order and superintendence of the town authorities within the meaning of that expression as used in the Amendment to the Constitution. The authority of the superintendent is limited to methods of education, and he may not exercise any other control over the institution, its management or discipline. The principal purpose of the amendment was doubtless to prevent the use of moneys raised or appropriated for the support of the public schools for the purpose of sustaining sectarian schools. The academy at Westford may or may not be sectarian in its character. There is nothing, however, in the agreement between the trustees and the town which prevents it from being so, or in any way limits the character of religious instruction or services which may prevail in the academy. The arrangement between the town and the academy differs essentially from that relating to the Powers Institute in the town of Bernardston, which, in an opinion to you, dated March 8, 1897 (1 Op. Atty.Gen. 427), I advised you make the academy to all intents and purposes a school under the control of the authorities of the

town. In that case the trustees of the academy are elected by the inhabitants of the town and must be citizens of the town, and they are required to make an annual report to the town. Westford Academy, however, is wholly independent of the town, excepting so far as the town superintendent may exercise supervision over the methods of instruction. As this does not place the academy under the order and superintendence of the authorities of the town, the case, in my opinion, comes within the prohibition of the Amendment to the Constitution.

Strictly speaking, the duty of the Board of Education is that of approval of an academy in respect to the grade of its work. The Board, in exercising the duties entrusted to it under St. 1895, c. 94, § 1, is not concerned with the question whether the town may or may not lawfully pay the tuition of pupils in any given case. But, as the towns may not pay the tuition of pupils attending the academy, I see no reason why, in the exercise of your discretion you should not for that reason withhold your approval of the institution.

The answer to your second question is governed by the foregoing considerations. Westford Academy, being a private school, not "under the order and superintendence of the authorities of the town," is therefore not a high school, and the State Board of Education has no authority to approve it as a high school. It follows that the State should not reimburse any town for the tuition of children sent to Westford Academy.

To the State
Board of
Education.
1899

September 5.

An article in the warrant of a town, "to see if the town will vote to form a union with" another town "for the purpose of employing a superintendent of schools," is sufficient to authorize the voters of that town to vote for such union, although St. 1898, c. 466, is not referred to in the article, especially as there is no other statute under which a union of towns for that purpose could be affected.

Your letter of September 2 states that the towns of Merrimac and Billerica have formed a district for the employment of a school superintendent, under the provisions of St. 1898, c. 466;