Comley v. Board of Purchase and Supplies

• Decision Date: 06 March 1930
• Parties: COMLEY, STATE'S ATTY., v. BOARD OF PURCHASE AND SUPPLIES OF CITY OF STAMFORD ET AL.
• Court: Connecticut Supreme Court

149 A. 410

111 Conn. 147

COMLEY, STATE'S ATTY., v. BOARD OF PURCHASE AND SUPPLIES OF CITY OF STAMFORD ET AL.

Supreme Court of Errors of Connecticut.

March 6, 1930

Appeal from Superior Court, Fairfield County; Carl Foster, Judge.

Mandamus by William H. Comley, State's Attorney, against the Board of Purchase and Supplies of the City of Stamford and others to compel defendants to purchase certain supplies for the fire department of the City of Stamford. Judgment granting a peremptory writ after denying defendants' motion to quash, and defendants appeal.

No error.

Walter Madigan, of Stamford, for appellants.

Daniel E. Ryan, of Stamford, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.J.

HAINES, J.

The case involves a conflict of authority between two branches of the city government of Stamford. The common council adopted a resolution on June 17, 1929, directed to the board of finance, requesting that that board make an appropriation for the use of the fire department, and specified among the articles to be purchased " one American La France City Service Truck, $10,000," and " extra equipment for City Service Truck $193." This resolution was approved by the mayor, and on June 25 1929, the board of finance granted the appropriation in the form and for the amounts requested. On June 28, 1929, the common council passed another resolution empowering the chief of the fire department to expend, in the manner prescribed by the ordinances and with the approval of the fire committee, $10,193 for " one American La France City Service Truck type No. 14 six cylinder $10,000 and extra equipment for City Service Truck $193, total $10,193." This resolution was approved by the mayor, and on the following day, June 29, 1929, the chief of the fire department, with the approval of the fire committee, as required by ordinances, requested the defendants board of purchase and supplies and the purchasing agent to purchase the truck specified as follows: " One American La France type 14 six cylinder Service Truck as per specifications, at once, $10,000: From American La France and Foamite Industries, Inc., Fisk Building, Broadway, New York City." The defendants refused and still refuse to make the purchase, and the state's attorney for Fairfield county, on behalf of the city of Stamford, brought this application for a writ of mandamus to require the defendants to make the purchase as requested. The defendants filed a motion to quash the application, and the issues presented upon this appeal arise from the action of the trial court in denying the motion to quash.

The board of purchase and supplies contends that it has no legal authority and is under no legal obligation to make the purchase, because it is vested only with supervisory authority over the purchasing agent, and that it is therefore not subject to the jurisdiction of the superior court in this action. The purchasing agent defends on the ground that he is without legal power to make the purchase, for the reason that the Legislature has imposed upon him the duty to obtain at least two bids for all proposed purchases where the amount to be expended is more than $200, and that the truck specified in this proposed purchase is obtainable from one source only, being a patented article.

We consider first the authority of the common council: By the charter of the city of Stamford as revised in 1915 and amended down to and through the session of 1927, it appears that the common council is vested with certain comprehensive and specific duties and powers, among which are the following:

" To regulate and fix the salaries and compensation of all officers and employees of said city and prescribe the duties of said officers and employees * * * to create such new offices in the police or fire department of said city as said council may deem advisable, and may add to or decrease the number of men in any branch of said departments, * * * to protect said city from fire and from danger of fire, * * * to organize, maintain and regulate a fire department and provide suitable apparatus, buildings, horses and appurtenances therefor. To establish fire limits * * * to prescribe the amount of bonds to be given by city officers or employees, and to confer upon the officers of said city all proper authority to enable them to exercise their official powers and to discharge their official duties." Section 75.

" The said common council is hereby authorized to make, alter or repeal and enforce any ordinances not inconsistent with this act or with the laws of this state or of the United States, which it may deem conducive to the general health, peace, good order, welfare and safety of the inhabitants of said city and for the protection of the property therein. * * *" Section 77.

" There shall be a fire department of said city which shall consist of a chief and a deputy chief, both of whom shall be permanent firemen and not call-men, and such number of other permanent firemen as the common council may from time to time determine, and the present call-men, the duties of all of whom, except as herein specified, shall be determined by the common council, and all of whom shall hold office unless otherwise herein provided, until removed by the common council for malfeasance in office, neglect of duty, incompetence or other just cause, but none of whom shall be removed without due notice and hearing." Section 196.

" The common council may make such rules and regulations, not inconsistent with this act, as it may deem advisable for the government of said fire department." Section 203.

Unless modified by later legislative provisions, which we shall later consider, there can be no fair question but that the authority of the common council to direct the purchase of this particular truck subject to the approval of the mayor, and the act of appropriation by the board of finance, is plenary and absolute.

The charter provides for a board of finance consisting of eight members, electors of the city, appointed by the mayor, and confirmed by the common council, who serve without compensation and hold no other city office. Section 96. The mayor is ex officio a member and the presiding officer at all meetings of the board, but without a vote save in the event of a tie. Section 97. The city clerk is the clerk of the board of finance. Section 98. The board of finance, after public hearings, takes action on the budget submitted by the common council and makes appropriations for each of the departments of the city government and for other city purposes as it deems appropriate, and transmits a statement of its doings to the common council. Section 104. If extra or additional appropriations are sought by the common council, the board upon public hearing, takes action at its next regular meeting or at a special meeting, and makes such appropriation as it deems proper, and reports its action to the common council. Section 105. All appropriations made by the board of finance must be made by items " specifying the amount of money appropriated therein and the purpose for which said amount is appropriated, and none of the appropriation shall be used for any other purpose than that specified." Section 106. Amended by Special Act 1929, c. 443, § 15. From this it appears conclusively that the appropriation and the specific purpose for which it was made in this case, was properly authorized by the board of finance. In the absence of any qualifying or restricting legislation, the powers of the common council and the board of finance, which we have traced, gave ample sanction for the order for this truck, in all its terms.

The defendants claim, however, that there are such qualifications and limitations upon the authority of the common council to be found in an act of the General Assembly, amending the act of 1927, and approved June 18, 1929. That act created a board of purchase and supplies consisting of four resident electors of the city, not more than two to be of the same political party. " The chairman of the finance committee of the common council shall be ex officio a member of said board" and shall preside at all meetings, but without a vote except in the event of a tie. The members of this board, like those of the board of finance, are nominated by the mayor and confirmed by the common council. Charter, § 96, amended, Special Acts 1929, c. 443, § 24. The same act of 1929 also amended former legislation creating a park commission, section 4; creating a board of estimate and appraisal, section 8; a board of public safety, section 11. All the members of these boards are also nominated by the mayor and confirmed by the common council. The mayor may call upon any of these boards for detailed estimates of the amount of money which will be necessary for its department for the ensuing year, and the entire budget, except that for the park commission and the board of public safety, must be submitted by the city clerk to the common council, and thereupon transmitted by the common council to the board of finance with any recommendations for changes which the common council deems desirable. Special Acts 1929, c. 443, § 14.

" Said board of purchase and supplies shall appoint a purchasing agent who shall be a resident elector of the city of Stamford, and he shall hold office during the pleasure of said board. It shall be the duty of the purchasing agent to purchase or procure under the supervision of all members of said board, all articles, materials and supplies for the use and needs of the city of Stamford, and all departments, boards, and officers thereof for which the board of finance has made the necessary appropriations. Whenever any by-product or any other personal property of any department of the...