Burt v. Mun. Council of Taunton

• Decision Date: 05 July 1930
• Citation: 172 N.E. 230,272 Mass. 130
• Parties: BURT et al. v. MUNICIPAL COUNCIL OF TAUNTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

272 Mass. 130

172 N.E. 230

BURT et al.

v.MUNICIPAL COUNCIL OF TAUNTON.

Supreme Judicial Court of Massachusetts, Bristol.

July 5, 1930.

Report from Supreme Judicial Court, Bristol County.

Petition by George H. Burt and others, taxpayers of the City of Thompson, against the Municipal Council of Taunton. A demurrer to the petition was overruled. On report.

Order overruling demurrer affirmed.

R. J. Regan, of Taunton, for plaintiffs.

H. F. Hathaway, of Boston (E. A. Hathaway, of New York City, on the brief), for defendants.

RUGG, C. J.

This is a petition under G. L. c. 40, § 53, by more than ten taxpayers of the city of Taunton against the municipal council, the chief engineer of the fire department and the city treasurer of that city. In brief, the allegations of the petition as amended are that, by valid and subsisting order adopted by the municipal council, all committees of the municipal council were forbidden to make purchases in an amount exceeding five hundred dollars without calling for sealed proposals after specified advertisement, and all contracts were required to be awarded to the lowest responsible bidder; that in May, 1929, an appropriation of $13,500 was made by the city for the purchase of a motor driven pumper for the fire department; that after the rejection of certain bids the committee on fire and wires called for new bids by advertisement and submitted to bidders specifications in part of the tenor following: ‘These specifications are not drawn to cover this apparatus in detail, only to give the bidder an outline of what will be required in a general way. Each bidder must furnish a complete set of specifications in detail as to his apparatus'; that bids varying from $11,975, the lowest, to $13,500, the highest, were submitted to and opened by the committee, which reported to the municipal council without recommendation as to acceptance of any of the bids, and that by vote of five members constituting a majority of the municipal council the matter on June 11, 1929, was referred back to the committee with authority to purchase a motor pumper without regard to the amount of the bid or the type of the pumper; that two of the three members of the committee have openly asserted that they were in favor of and would vote for the purchase from one of the high bidders; that the low bidders were responsible, of good reputation and manufacturers of a high grade pumper in general and satisfactory use; that the defendants are about to expend money and incur obligations in the purchase of a motor pumper from the highest bidder in direct violation of the binding order of the municipal council, and that the defendants are acting in bad faith and not for the best interests of the city. Certain of the defendants demurred, assigning several causes, which so far as argued will be discussed.

The allegations of the bill are sufficient to show that the proposed expenditure of public money is impending and that it is not merely anticipatory. Fuller v. Trustees of Deerfield Academy, 252 Mass. 258, 147 N. E. 878;Morse v. Boston, 253 Mass. 247, 255, 148 N. E. 813;Reilly v. Selectmen of Blackstone (Mass.) 165 N. E. 660;Dowling v. Board of Assessors (Mass.) 168 N. E. 73. The vote of the municipal council of June 11, 1929, was a vote to expend money. Prince v. Crocker, 166 Mass. 347, 358, 44 N. E. 446,32 L. R. A. 610;Loring v. Inhabitants of Westwood, 238 Mass. 9, 130 N. E. 85. No contention has been made that there was any invalidity in the order making appropriation for the purchase of the motor driven pumper. A reasonable presumption is to be made in favor of the action of the municipal council. Bryant v. Pittsfield, 199 Mass. 530, 532, 85 N. E. 739. The money for making the purchase was available on the...