Bartlett v. City of Lowell

• Decision Date: 25 February 1909
• Citation: 201 Mass. 151,87 N.E. 195
• Parties: BARTLETT v. CITY OF LOWELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

201 Mass. 151

87 N.E. 195

BARTLETT v. CITY OF LOWELL.

Supreme Judicial Court of Massachusetts, Middlesex.

February 25, 1909

COUNSEL

F. E. Dunbar, A. C. Spalding, and John Jacob Rogers, for plaintiff.

J Gilbert Hill, for defendant.

OPINION

LORING J.

The only exception in this case was taken to the ruling directing a verdict for the defendant.

The plaintiff introduced evidence that in the year 1903 he made a contract with the superintendent of streets of the defendant city, whereby he agreed to sell to the city, for use in repairing the city streets, all the gravel above a specified grade that there was on a parcel of land owned by him, and the city agreed to fill all depressions on said parcel of land with street sweepings so as to bring up the whole surface to the specified grade; that in pursuance thereof the city took from his land 17,528 cubic yards of gravel, worth from 30 to 50 cents a cubic yard, and furnished but 500 of the 20,271 cubic yards necessary to fill the depressions and to bring the surface of the plaintiff's land to the grade specified; and that the remaining 19,771 cubic yards which the defendant city failed to supply would cost him 80 cents to $1 a cubic yard.

The plaintiff's counsel in his argument has relied on the fact that in December, 1905, the plaintiff wrote to the mayor, complaining that the agreement stated above had not been kept by the superintendent of streets, and that in answer the mayor wrote to him on the same day that the matter would be called to the attention of the superintendent of streets.

The declaration originally contained three counts. The first was for breach of the contract stated above, and the second was a common count for gravel sold. The third, in tort, was waived.

1. The superintendent of streets had no authority to make the contract declared on in the first count, and the mayor had no authority to ratify it, if what he wrote on December 27, 1905, could be taken to be a ratification.

The principal, or at least one of the principal, changes made in the government of the city of Lowell by the new charter granted in 1896 (St. 1896, p. 364, c. 415) was the creation of a department of supplies, with a chief elected annually by the voters of the city subject to suspension or removal for such cause as the mayor might deem sufficient (to be stated in the order of suspension or removal) but not otherwise.

The provision of the statute in this connection is this: 'All material and supplies for the city shall be purchased by the chief or head of such department, subject to the approval of the mayor.' It is also provided that 'so far as it is practicable' such purchases shall be made after public advertisement and under contract approved by the mayor. St. 1896, p. 365, c. 415, § 3. It is further provided in section 7 that 'neither the city council nor either branch thereof, nor any committee or member thereof, shall directly or indirectly take part in the employment of labor, the purchase of material, the construction, alteration or repair of any public works or other property, or in the care, custody or management of the same, or in general in the expenditure of public money or in the conduct of the executive or administrative business of the city, except as may be necessary for defraying the contingent and incidental expenses of the city council or of either branch thereof; nor shall they or either of them take part in the making of contracts.'

The change made by the new charter of the defendant city as to the purchase of material and supplies was considered by this court in Muldoon v. Lowell, 178 Mass. 134, 59 N.E. 637. It is there pointed out that immediately before the granting of the new charter all material and supplies were purchased by the heads of the several departments under the direction of the appropriate standing committee of the city council. It is plain that the change made by the new charter in regard to the purchase of material and supplies was revolutionary, and that these provisions of the charter should receive a broad construction. For that reason we cannot adopt the construction contended for by the learned counsel for the plaintiff, to wit, that the word 'purchase' should be limited to a purchase for money, excluding a purchase where the property bought is to be paid for in kind and that the word 'supplies' should be limited to articles of food, and the word 'material' to 'that which the city has occasion to have on hand for the manufacture of other things.' On the contrary we are of opinion that a purchase of gravel to be taken away by the city and used in repairing the city streets, to be paid for by other filling deposited on the lot in question by the city, is a purchase of material within St. 1896, p. 365, c. 415, § 3.

St. 1897, p. 69, c. 95, § 3, puts a further difficulty in the way of holding the contract (which the superintendent of streets undertook to make) a valid one. It is there provided that personal property of the defendant city can be sold and disposed of only by the head of the department of supplies, upon the recommendation of the mayor and the head of the department to which such property belongs. It would seem that the filling which the superintendent of streets undertook to furnish to the plaintiff could be disposed of only by the head of the department of supplies upon recommendation of the mayor and the superintendent of streets.

It follows that the contract here in question is not a contract which the superintendent of...