Baker v. Commonwealth

• Decision Date: 01 December 1942
• Citation: 45 N.E.2d 470,312 Mass. 490
• Parties: BAKER v. COMMONWEALTH. KELLY v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

312 Mass. 490

45 N.E.2d 470

BAKER

v.COMMONWEALTH.

KELLY

v.SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 1, 1942.

Proceedings on petitions by Henry E. Baker and Martin J. Kelly against the Commonwealth to recover for repairs made by petitioners on certain armories under contracts with the State Quartermaster. From orders for judgments for the Commonwealth, petitioners appeal.

Order for judgment in each case affirmed.Appeal from Superior Court, Suffolk County; Williams, Judge.

Before FIELD, C. J., and DONAHUE, QUA, COX, and RONAN, JJ.

Nyman H. Kolodny, of Boston, for petitioners.

W. L. MacIntosh, Asst. Atty. Gen., for respondent.

RONAN, Justice.

These are petitions filed under G.L.(Ter.Ed.) c. 258, against the Commonwealth, the first by Baker to recover $8,500 for repairs made on the Holyoke Armory and the second by Kelly to recover $7,400 for similar work performed at the Worcester Armory. The material was supplied and the work was furnished by the petitioners in accordance with written contracts dated October 24, 1938, and executed October 28, 1938, by each of them with the State quartermaster, described therein as ‘Quartermaster General, Executive Dept.’ The general appropriation act enacted in May, 1938, appropriated to the service of the quartermaster ‘For the maintenance of armories of the first class, including the purchase of certain furniture, a sum not exceeding one hundred ninety-six thousand dollars.’ St.1938, c. 356, § 2, Item 138. This general appropriation act provided in section 3 that ‘No liabilities in excess of appropriations provided for under this act shall be incurred by any department or institution, except in cases of emergency, and then only upon the prior written approval of the governor and council.’ On October 26, 1938, this appropriation had all been expended except the sum of $6,581.47. The unemployment compensation commission had occupied and used certain armories which caused an expense to the quartermaster amounting to $10,539.23. This he paid or contracted to pay. On October 27, 1938, this sum was paid by the commission by check to the quartermaster and was credited upon his books, which then showed an unexpended balance of $17,120.70. The check was delivered by the quartermaster to the State treasurer and credited by the State comptroller to the quartermaster, but the comptroller, on November 30, 1938, at the end of the fiscal year, struck out such credit. The petitioners have not been paid and their contention is that the sum of $10,539.23 should have been included in the unexpended balance of the quartermaster, which then would have been sufficient to pay them. The judge ruled that, upon the case stated upon which the petitions were submitted, the petitioners were not entitled to recover and ordered judgments for the Commonwealth. The petitioners appealed.

The liability of the Commonwealth depends upon the sufficiency of the appropriation available to the quartermaster to pay the petitioners the amounts mentioned in their contracts. It does not appear as a fact from the case stated that any portion of the unexpended balance amounting to $6,581.47 was, in truth, available for the payment of the claims of the petitioners when the alleged contracts were made. Adams v. Essex County, 205 Mass. 189, 91 N.E. 557;Dyer v. Boston, 272 Mass. 265, 172 N.E. 235;Burt v. Municipal Council of Taunton, 275 Mass. 535, 176 N.E. 511;McHenry v. Lawrence, 295 Mass. 119, 3 N.E.2d 262. His authority to contract in behalf of the Commonwealth was limited by G.L.(Ter.Ed.) c. 29, § 27, as amended by St.1937, c. 359, which, in so far as material, provides that ‘No officer or board shall incur a new or unusual expense, [or] make a permanent contract * * * unless a sufficient appropriation to cover the expense thereof has been made by the general court.’ See now St.1939, c. 502, § 13. The power of the quartermaster to contract with these petitioners in behalf of the Commonwealth depended upon the adequacy of his appropriation to pay the indebtedness that would be thereby incurred, Smith v. Lowell, 190 Mass. 332, 76 N.E. 956;Costello v. North Easton Village District, 205 Mass. 54, 91 N.E. 219;Burt v. Municipal Council of Taunton, 275 Mass. 535, 176 N.E. 511, and it was the duty of the petitioners in contracting with the Commonwealth to ascertain the authority of the public officer who purported to act for the Commonwealth. Boston Electric Co. v. Cambridge, 163 Mass. 64, 39 N.E. 787;Wormstead v. Lynn, 184 Mass. 425, 68 N.E. 841;Meader v. West Newbury, 256 Mass. 37, 152 N.E. 315. Moreover, it is provided by G. L. (Ter.Ed.) c. 29, § 26, that ‘No obligation incurred by any officer or servant of the commonwealth in excess of the appropriation for the office, department or institution which he represents shall impose any liability upon the commonwealth.’ See now St.1939, c. 502, § 12. This broad provision was designed to require an official or a department to keep expenditures within the amount appropriated and to protect the public credit by preventing the incurring of any indebtedness against the Commonwealth for the payment of which no provision had been made by the Legislature. Under such statutory provisions, there is no liability in the absence of an appropriation available for its payment. Morse v. County of Norfolk, 170 Mass. 555, 49 N.E. 925;Adams v. Essex County, 205 Mass. 189, 91 N.E. 557;Twombly v. Selectmen of Billerica, 262 Mass. 214, 159 N.E. 630;Dyer v. Boston, 272 Mass. 265, 172 N.E. 235;McHenry v. Lawrence, 295 Mass. 119, 3 N.E.2d 262;Peters v. Medford, 295 Mass. 588, 4 N.E.2d 338;Continental Construction Co. v. Lawrence, 297 Mass. 513, 9 N.E.2d 550, 111 A.L.R. 699;McCarthy v. Malden, 303 Mass. 563, 22...