Archambault v. Mayor of Low. Ell

• Decision Date: 07 March 1932
• Citation: 180 N.E. 157,278 Mass. 327
• Parties: ARCHAMBAULT et al. v. MAYOR OF LOW. ELL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

278 Mass. 327

180 N.E. 157

ARCHAMBAULT et al.

v.MAYOR OF LOW. ELL et al.

Supreme Judicial Court of Massachusetts, Middlesex.

March 7, 1932.

Appeal from Superior Court, Middlesex County; Broadhurst, Judge.

Suit by Amedee Archambault and others against the Mayor of Lowell and others. From an interlocutory decree confirming the report of a master and a final decree dismissing the bill, petitioners appeal.

Affirmed.James J. Bruin, of Lowell, for petitioners.

Henry V. Charbonneau, City Sol., of Lowell, for Braden and others.

William J. White, Jr., of Lowell, for J. H. Sparks Co., Inc.

FIELD, J.

This petition in equity was brought by ten or more taxpayers of the city of Lowell under G. L. c. 40, § 53, to restrain the mayor, the city treasurer, the city auditor and the board of health from expending money under a contract for ambulance service awarded to the J. H. Sparks Company, Inc., and for other relief, on the ground that the contract was illegal. The case was referred to a master by an order of reference which did not require a report of evidence. See Dobias v. Faldyn (Mass.) 179 N. E. 219. He made a report to which the petitioners filed objections. By an interlocutory decree these objections-treated as exceptions under the rule-were overruled, and the report was confirmed. A final decree dismissing the bill with costs was entered. The petitioners appealed from both decrees.

The master found that a city ordinance of July 6, 1926, provided that the board of health should award a contract annually for the operation and storage of vehicles used in the ambulance service-herein referred to as an ambulance contract-that the board of health, consisting of three persons, by a majority awarded such a contract in 1931 to the J. H. Sparks Company, Inc., for $4,992, that the mayor approved the contract-the approval of the mayor and of the board of health are affixed thereto-and that the city of Lowell was about to expend money thereunder through the city auditor and the city treasurer. The master found in detail the terms of the contract and the circumstances under which it was awarded. He found that ‘so far as it is a question of fact * * * the petitioner, Amedee Archambault, was the lowest responsible bidder,’ and that in the opinion of the mayor and of one member of the board of health he was the lowest responsible bidder. The master found, however, that the two other members of the board of health believed they were acting in the best interests of the city in awarding the contract to the J. H. Sparks Company, Inc., and that ‘unless as matter of law an award made against the best interests of the city is an award made in bad faith,’ these members of the board of health ‘acted in good faith in making the award to the J. H. Sparks Co. Inc., and * * * unless an award against the best interests of the city is as matter of law an award made in an arbitrary manner, said award was not made in an arbitrary manner.’ He found, if material, that in his opinion the best interests of the city required the award of the contract to Archambault, but found further that ‘intelligent and honest men might reasonably be of a different opinion,’ and, therefore, that ‘the award was not made by the board of health in an arbitrary manner or in bad faith unless, as matter of law, an award against the best interests of the city is made in bad faith or in an arbitrary manner.’

The interlocutory decree overruling the exceptions and confirming the report was proper. There is no merit in the exceptions. The exception ‘to the finding of the master that the award of the contract, although made against the best interest of the city, was not made in bad faith, for the reason that said finding and conclusion is inconsistent with the law’ does not state the master's finding and conclusion accurately. The master expressly excluded from his findings any finding or conclusion whether as matter of law an award made against the best interests of the city was made in bad faith, or in an arbitrary manner. Confirmation of the report, therefore, did not imply a ruling on the question of law so reserved, but left it open for consideration by the judge in determining what decree should be entered on the report as confirmed. By the other exceptions the petitioners attempted to raise questions whether certain findings and conclusions of the master were warranted by the evidence. Since the evidence was not reported no such question was open before the judge nor is open before us on appeal.

The final decree dismissing the bill was proper, since it does not appear from the facts found by the master that the contract was illegal. The petitioners attack its legality on three grounds, (a) that it was not awarded to the lowest responsible bidder, (b) that the bid of the J. H. Sparks Company, Inc., and the contract awarded to that corporation did not conform to the specifications referred to in the advertisement for bids, and (c) that the award of the contract was against the best interests of the city, arbitrary and in bad faith.

1. The contract was not illegal on the ground that it was not awarded to the bidder found by the master to be the lowest responsible bidder.

Neither the charter of the city nor, so far as appears, any ordinance in terms requires such a contract to be awarded to the lowest responsible bidder if the award in other respects is unobjectionable. After January, 1922, the charter of the city was a plan B charter as set forth in G. L. c. 43, §§ 1-45, and 56-63, as amended. Section 29, as amended by St. 1928, c. 300, § 2, provides that contracts involving $500 or more shall be in writing with the approval of the mayor and of the department, or board making it affixed thereto. These requirements were fulfilled. Section 28, as amended by St. 1928, c. 300, § 1, provides that ‘No contract for construction work or for the purchase of apparatus, supplies or materials, whether for repairs or original construction, the estimated cost of which amounts to five hundred dollars or more,’ except in cases of special emergency, ‘shall be awarded unless proposals for the same have been invited by advertisements,’ with detailed provisions as to publication; that the advertisements ‘shall reserve to the city the right to reject any or all of such proposals,’ and that ‘such proposals shall be opened in public.’ See, also, section 27. These sections purport to deal with the whole subject-matter of the award of contracts and, even if, as contended by the respondents, section 28 is not applicable to the contract in question, supersede the provisions of the prior charter of the city concerning this subject-matter, including the provision of St. 1921, c. 383, § 46, that ‘All contracts for more than five hundred dollars...