Continental Const. Co. v. City of Lawrence

• Decision Date: 28 June 1937
• Citation: 9 N.E.2d 550,297 Mass. 513
• Parties: CONTINENTAL CONSTRUCTION CO. v. CITY OF LAWRENCE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

297 Mass. 513

9 N.E.2d 550

CONTINENTAL CONSTRUCTION CO. v. CITY OF LAWRENCE.

Supreme Judicial Court of Massachusetts, Essex.

June 28, 1937

March 3, 1937.

Present: RUGG, C.

J., PIERCE, FIELD LUMMUS, & QUA, JJ.

Municipal Corporations, Municipal finance, Officers and agents Contracts.

A vote by a city council that, due to conditions resulting from an extreme amount of snow, "an extreme emergency involving the health and safety of the people" was "declared," was not evidence of the existence of the

"extreme emergency" which under G. L. (Ter. Ed.) c. 44, Section 31, would warrant an expenditure by the city for snow removal in excess of appropriations.

A contractor could not recover upon a contract with a city for the removal of snow where, in making the contract, requirements of G. L (Ter. Ed.) c.

44, Section 31, and pertinent requirements of the city charter were not observed.

Section 14 of G. L (Ter. Ed.) c. 44 does not permit the enforcement against a city of a claim prohibited by its charter.

An action against a city upon a contract for the removal of snow from the streets made by a city officer having the powers of surveyors of highways under G. L. (Ter. Ed.) c. 84, Section 7, could not be maintained where it did not appear that the city had failed to provide sums sufficient to make the ways "reasonably safe and convenient."

CONTRACT. Writ in the District Court of Lawrence dated August 19, 1935. The action was heard by Dooley, J., who found for the defendant. Upon report to the Appellate Division for the Northern District, judgment was ordered entered for the plaintiff. The defendant appealed.

J. A. Costello, City Solicitor, for the defendant. W. P. Reilley, for the plaintiff.

QUA, J. The plaintiff seeks to recover for the use of trucks and tractors in plowing and hauling snow on and from the streets of the city as ordered by the alderman who, in accordance with the city charter, had been chosen director of the department of engineering. St. 1911, c. 621, Part II, Section 41.

All the work was done and the charges therefor were incurred in the month of February, 1935, before the regular appropriations had been made for that fiscal year. No special appropriation was made to cover these items, and during that month the city incurred liabilities for similar purposes greatly in excess of the sums spent for such purposes during any one month of the preceding year and therefore in excess of the sum authorized by G. L. (Ter. Ed.) c. 44, Section 34. Hence, even if we assume that the authority conferred by that section is to be treated as the equivalent of an appropriation, the alleged liability of the city to the plaintiff was incurred in violation of the city charter, St. 1911, c. 621, Part II, Section 34 (see also Section 35), and likewise in violation of G. L. (Ter. Ed.) c. 44, Section 31, both of which sections forbid the incurring of liability in excess of appropriations, unless this was a case of "extreme emergency" within the express exception contained in the section last mentioned. That exception reads as follows: "except in cases of extreme emergency involving the health or safety of persons or property, and then only by a vote in a city of two thirds of the members of the city council, and in a town by a vote of two thirds of the selectmen."

At the trial no evidence was introduced bearing upon the existence of an extreme emergency, except that on January 28, 1935, the city council by unanimous vote passed this order: "Whereas: Due to the conditions of the City because of the extreme amount of snow, an extreme emergency involving the health and safety of the people is hereby declared; Therefore, be it ordered: That the Director of Engineering be, and hereby is ordered to take all necessary means and expend any amounts of money necessary to expeditiously and thoroughly relieve these conditions." The plaintiff contends that this order creates a presumption, or constitutes prima facie evidence, of the existence of such emergency. The defendant contends that it is not even evidence of such emergency, and that the plaintiff must fail in the action for lack of proof that any emergency existed.

In Flood v Hodges, 231 Mass. 252 , at 256, it was said that the original municipal indebtedness act, from which the present 31 is derived, "was an innovation in the administration of the financial affairs of cities" to which it related; that it was an act of broad application, repealing general and special acts inconsistent therewith; and that "The manifest purpose of the framers of the act was to set rigid barriers against expenditures in excess of appropriations . . . and in general to put cities upon a sound financial basis so far as these ends can be achieved by legislation." The prohibitions of such an act must not be weakened, nor the exceptions enlarged, by...