Douglas v. Woods Hole, Martha's Vineyard and Nantucket S.S. Authority

• Decision Date: 04 December 1974
• Citation: Douglas v. Woods Hole, Martha's Vineyard and Nantucket S.S. Authority, 319 N.E.2d 892, 366 Mass. 459 (Mass. 1974)
• Parties: Robert S. DOUGLAS et al. v. WOODS HOLE, MARTHA'S VINEYARD AND NANTUCKET STEAMSHIP AUTHORITY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 892

319 N.E.2d 892

366 Mass. 459

Robert S. DOUGLAS et al. v.WOODS HOLE, MARTHA'S VINEYARD AND NANTUCKET STEAMSHIP AUTHORITY.

Supreme Judicial Court of Massachusetts, Dukes County.

Argued Sept. 19, 1974.

Decided Dec. 4, 1974.

Robert J. Muldoon, Jr. Boston, for petitioners.

Scott C. Moriearty, Boston (Laurence S. Fordham, Boston, with him), for respondent.

Before TAURO, C.J., and QUIRICO, BRAUCHER, HENNESSEY and WILKINS, JJ.

BRAUCHER, Justice.

This petition for writ of mandamus brings to us the question whether, under the statute creating the respondent Authority, it is required to advertise for competitive bids in purchasing an existing vessel.St.1960, c. 701, § 15, as amended bySt.1964, c. 278.¹We hold that such a 'vessel' is not 'equipment' subject to the competitive bidding requirement.We do not pass on the propriety in other respects of the remedy sought.

The petition alleges the following facts.The petitioners are residents and citizens of Dukes County.The Authority is a public instrumentality and body corporate created by St.1960, c. 701.About February 16, 1973, it purchased and paid $435,000 for a freighter capable of transporting motor vehicles.The vessel was located in Louisiana, and the Authority proposed to expend further funds to transport the vessel to Massachusetts.The Authority did not comply with the competitive bidding requirements of the statute creating it, governing its purchases of equipment.Dukes County is obligated to meet fifty per cent of any annual deficit incurred by the Authority.§ 9.The obligation is levied on county taxpayers through levies on the towns in the county, and the petitioners along with other county residents, would share in any resulting burden.The petitioners prayed for interlocutory relief and for a writ of mandamus ordering and enjoining the Authority to refrain from expending funds incidental to the purchase and to rescind the transaction.

In the Superior Court interlocutory relief was denied, a demurrer was sustained, and an order for judgment was entered.The petitioners appealed from the interlocutory decree sustaining the demurrer and from the order for judgment.A motion for injunction pending appeal was denied.

1.The petitioners' allegations are insufficient to allege an interest apart from that of the public generally and hence to show standing to maintain a bill in equity for injunctive and declaratory relief.Nantucket Boat, Inc. v. Woods Hole, Martha's Vineyard & Nantucket S.S. Authy., 345 Mass. 551, 553--554, 188 N.E.2d 476(1963).Fine v. Woods Hole, Martha's Vineyard & Nantucket S.S. Authy., 350 Mass. 775, 215 N.E.2d 776(1966).They contend, however, that the rule is different when a writ of mandamus is sought to enforce a public duty, citing Brewster v. Sherman, 195 Mass. 222, 224--225, 80 N.E. 821(1907), Kaplan v. Bowker, 333 Mass. 455, 460, 131 N.E.2d 372(1956), andGould v. Greylock Reservation Commn., 350 Mass. 410, 411, 215 N.E.2d 114(1966).In the Gould case, which in some respects resembles the present one, the issue of standing was not considered.The Authority denies that the rule depends on the form of the action, citing Reading v. Attorney Gen., --- Mass. ---, ---, ^a285 N.E.2d 429(1972).Cf.Mass.R.Civ.P. Rules 2,81(b).It points out that § 12 of the statute authorizes mandamus only by or on behalf of bondholders.It also contends that the seller of the vessel is an indispensable party.Lawrence v. Smith, 201 Mass. 214, 215, 87 N.E. 623(1909).Dresser v. Inspector of Bldgs. of Southbridge, 348 Mass. 729, 731, 205 N.E.2d 724(1965).Further, it says, the case, as a mandamus case, is moot.CompareNew Bedford v. New Bedford, Woods Hole, Martha's Vineyard & Nantucket S.S. Authy., 329 Mass. 243, 247, 107 N.E.2d 513(1952), andSpear v. Boston, 345 Mass. 744, 746, 189 N.E.2d 519(1963), withNickols v. Commissioners of Middlesex County, 341 Mass. 13, 27, 166 N.E.2d 911(1960), andGould v. Greylock Reservation Commn.,350 Mass. 410, 427, 215 N.E.2d 114(1966).In view of our determination that the competitive bidding statute is not applicable, we do not resolve these questions.

2.The competitive bidding statute(see fn. 1) applies to contracts 'for construction work or for the purchase of equipment, supplies or materials, whether for repairs or original construction,' unless the estimated cost is less than $1,000 or there is a special emergency.Its language is similar to that of G.L. c. 40, § 4B, applicable to most cities and towns but omitting the phrase, 'whether for repairs or original construction,' and G.L. c. 43, § 28, applicable to certain cities.We pass without deciding the question, disputed by the parties, whether the phrase omitted in the c. 40 provision serves to limit or merely to clarify the other statutes.

In our opinion the statute creating the Authority uses the word 'vessel' in such a way as to show that vessels are not included in 'equipment.''Vessels' and 'equipment' are referred to as distinct items at four places in the statute.²In two other places reference is made to 'vessels and other facilities.'§§ 4(b),5.Distinction between vessels and equipment is common in other statutes where special consideration is given to vessels.See, e.g., G.L. c. 90B, § 1(damage to 'vessel or its equipment');§ 7('vessel' required to be provided with 'equipment');c. 235, § 34('tools, implements and fixtures' exempted separately from 'boats, fishing tackle and nets');c. 255, § 14(lien on 'the vessel, her tackle, apparel and furniture');Federal Boat Safety Act of 1971, 46 U.S.C. § 1452(2)(8)(Supp. II, 1972)(separate definitions of 'vessel' and 'associated equipment');Commonwealth v. Breakwater Co., 214 Mass. 10, 15, 100 N.E. 1034(1913)('equipment' of vessel).It is not contended that the vessel was 'construction work' or 'supplies or materials.'It follows that its purchase was not subject to the statute.Cf.Deary v. Dudley, 343 Mass. 192, 194, 178 N.E.2d 83(1961)('building' did not include a sewer).

Our reading makes the enactment, considered as a whole, a consistent and harmonious statutory provision capable of effectuating the presumed intention of the Legislature.Commonwealth v. Woods Hole, Martha's Vineyard & Nantucket S.S. Authy., 352 Mass. 617, 618, 227 N.E.2d 357(1967).The purpose of competitive bidding is 'to secure honest and open competition.'Sweezey v. Mayor of Malden, 273 Mass. 536, 540, 174 N.E. 269, 270(1931).Pacella v. Metropolitan Dist. Commn., 339 Mass. 338, 342, 159 N.E.2d 75(1959).Competitive bidding does not work well, as the petitioners concede, when there is a legitimate need for a product which is the subject of a monopoly, such as a patented article or a particular brand.SeeRhyne, Municipal Law, § 10--6, p. 263(1957).For similar reasons competitive bidding is not required by the present statute for the purchase of real property or existing docks or wharves.We think existing vessels are in a like category.Boone v. Cook, 365 S.W.2d 100, 102(Ct.App.Ky.1963).

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