Edwards v. City of Boston

• Decision Date: 21 November 1990
• Citation: 562 N.E.2d 834,408 Mass. 643
• Parties: , 63 Ed. Law Rep. 998 Lewis EDWARDS et al. 1 v. CITY OF BOSTON et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 834

562 N.E.2d 834

408 Mass. 643, 63 Ed. Law Rep. 998

Lewis EDWARDS et al. ¹ v. CITY OF BOSTON et al. ²

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Sept. 5, 1990.

Decided Nov. 21, 1990.

Harold J. Carroll (Joseph Mulligan, Corp. Counsel, Boston, Albert W. Wallis, Asst. Corp. Counsel, Quincy, Stephen H. Clark, Asst. Corp. Counsel & Michael S. Giaimo, Boston, with him) for the city of Boston et al.

Stephen E. Cotton, Sp. Asst. Atty. Gen. (Janet R. Werkman, Sp. Asst. Atty. Gen., with him) for the Inspector General, intervenor.

Paul L. Nevins, Wellesley, for Lewis Edwards et al.

Philip R. Olenick, Boston, for National School Bus Service, Inc., intervenor.

Before LIACOS, C.J., and NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

NOLAN, Justice.

This case requires us to determine whether the city of Boston is bound by the Uniform Procurement Act, G.L. c. 30B, and, if so, whether the exercise by the city of an option contained in a preexisting contract was consistent with that statute. We hold that the statute applies to the city and that the exercise of the option in question violated the statute. Accordingly we affirm the order of the single justice of the Appeals Court.

This dispute centers on the award of a contract to manage Boston's school transportation service for the 1990-1991 school year. The school committee of Boston and the city of Boston (collectively, city) entered into a contract with In-City Boston Management (ICBM) to provide school bus service for the 1989-1990 school year. That contract contained an option for an additional year exercisable by the city. On December 29, 1989, the Legislature enacted the Uniform Procurement Act, G.L. c. 30B, which provides that certain municipal contracts be awarded by advertised competitive bidding. That act took effect May 1, 1990. See St.1989, c. 687. On May 8, 1990, the city decided to exercise its option and extend the contract with ICBM through the 1990-1991 school year. The city did not solicit bids prior to the exercise of the option, nor did it respond to inquiries made by several potential bidders. On May 14, 1990, the city formally exercised the option.

Shortly thereafter, ten taxpayers residing within Boston brought this action under G.L. c. 40, § 53 (1988 ed.). The complaint alleged that the exercise of the option by the city violated the provisions of G.L. c. 30B. The Superior Court judge denied the plaintiffs' request for preliminary injunctive relief, ruling that there was an insufficient showing of irreparable injury to the plaintiffs, and that G.L. c. 30B did not apply to the exercise of the option. The plaintiffs appealed the denial of the preliminary injunctive relief to a single justice of the Appeals Court pursuant to G.L. c. 231, § 118, second par. (1988 ed.).

The single justice entered a preliminary injunction directing the city to comply with the provision of G.L. c. 30B. The city filed a notice of appeal from the single justice's order under G.L. c. 231, § 118, second par. This court transferred the appeal on its own motion.

The issues before us are (1) whether the single justice applied the proper standard in issuing the preliminary injunction; (2) whether G.L. c. 30B applies to the city, and (3) whether the exercise of the option was consistent with G.L. c. 30B.

The city argues initially that the single justice of the Appeals Court did not apply the proper standard in issuing the preliminary injunction. The plaintiffs (ten taxpayers) brought this action under G.L. c. 40, § 53. ³ That statute explicitly authorizes the grant of preliminary relief: "[The court] may, before the final determination of the cause, restrain the unlawful exercise or abuse of such corporate power." G.L. c. 40, § 53. The city claims that the single justice did not find irreparable injury to the plaintiffs and did not properly balance the potential harm to the parties. We disagree.

Since being enacted in 1847, G.L. c. 40, § 53, has provided a vehicle whereby concerned taxpayers may enforce laws relating to the expenditure of their tax money by local officials. See Richards v. Treasurer & Receiver Gen., 319 Mass. 672, 674-677, 67 N.E.2d 583 (1946) (recounting historical development of G.L. c. 40, § 53). The words of the statute and our cases interpreting it demonstrate that a violation of any law designed to prevent abuse of public funds is, by itself, sufficient harm to justify an injunction. See, e.g., East Side Constr. Co. v. Adams, 329 Mass. 347, 352, 108 N.E.2d 659 (1952), (quoting In re Emigrant Indus. Sav. Bank, 75 N.Y. 388, 386 [1878], "[t]he taxpayer has a right to insist that provisions intended for his security shall be observed, notwithstanding the fact that, in a particular case, he may have suffered no harm by reason of the neglect of the authorities to comply with them)." In cases brought under G.L. c. 40, § 53, the taxpayer plaintiffs act as private attorneys general, enforcing laws designed to protect the public interest.

In Commonwealth v. Mass. CRINC, 392 Mass. 79, 466 N.E.2d 792 (1984), we held that "[w]hen the government acts to enforce a statute or make effective a declared policy of [the Legislature], the standard of public interest and not the requirements of private litigation measure the propriety and need for injunctive relief," id. at 89, 466 N.E.2d 792, quoting United States v. D'Annolfo, 474 F.Supp. 220, 222 (D.Mass.1979). When a private party brings suit to enforce a spending statute under G.L. c. 40, § 53, the standard is the same. "Thus, before issuing the preliminary injunction, a judge is required to determine that the requested order promotes the public interest, or, alternatively, that the equitable relief will not adversely affect the public." Id. Further, where a statutory violation is alleged, "the judge who decides whether an injunction should issue needs to consider specifically whether there is a likelihood of statutory violations and how such statutory violations affect the public interest." Id.

Therefore, there was no need for the single justice to find irreparable injury before issuing the preliminary injunction. Merely finding a likely statutory violation which adversely affected the public interest was sufficient. The single justice found that G.L. c. 30B applies to the city of Boston and that the exercise of the option in question here violates that statute. If she was correct in her legal conclusions, and we hold that she was, then the preliminary injunction was properly issued.

Turning to the merits, the city argues that G.L. c. 30B does not apply to it because the statute conflicts with the city charter, and because the statute violates art. 89 of the Amendments to the Massachusetts Constitution, the Home Rule Amendment. In the alternative, the city argues that its exercise of the option was consistent with G.L. c. 30B. We address the latter contention first, for if the city complied with the statute there is no need to decide whether the statute applies to Boston.

The city points to § 12(e ) of G.L. c. 30B, which refers specifically to the exercise of options. ⁴ Although the exercise of the school transportation option arguably satisfied § 12(e ), that is not the only applicable part of G.L. c. 30B. Section 23 of St.1989, c. 687, states: "Any ... exercise of any option under any contract after the effective date of this act shall be subject to the provisions of [c. 30B]." The goal of this section is to treat the exercise of an option as an award of an original contract subject to all the provisions of c. 30B.

General Laws c. 30B, § 5, requires that contracts in excess of $10,000 be awarded on the basis of advertised, competitive bidding. The school transportation contract for the 1990-1991 school year is worth in excess of $25,000. The city neither solicited nor accepted bids for the 1990-1991 school bus service contract. The exercise of the option therefore was not in conformity with c. 30B.

The city puts forth two reasons why this court should exempt it from G.L. c. 30B. First, the city argues that the statute is incompatible with its charter, and that the charter should control. Second, the city asserts that, because of the unique impact G.L. c. 30B would have on Boston, the statute is violative of art. 89. We address these contentions in order.

1. The charter. The construction of General Laws which are in conflict with preexisting special laws requires a careful analysis of legislative intent. We will not lightly impute to the Legislature the intent to repeal an antecedent special law since "[i]t may happen that acts of special legislation may be made in regard to a place, growing out of its peculiar wants, condition, and circumstances." Brown v. Lowell, 8 Metc. 172, 174 (1844). See Emerson College v. Boston, 393 Mass. 303, 307-309, 471 N.E.2d 336 (1984). We need not attempt to infer the legislative intent behind G.L. c. 30B, however, unless that statute is inconsistent with the special laws governing Boston.

The city points to two areas where G.L. c. 30B arguably conflicts with its charter. First, the city asserts that c. 30B interferes with the power of the mayor to waive the advertisement of various contracts required under the charter. Second, the city argues that the requirement of c. 30B that the lowest bidder be awarded the contract interferes with the expertise that various municipal department heads must possess under the charter. We believe that there is no irreconcilable conflict between the two laws on either score.

The city charter of Boston is a patchwork of special laws enacted over the years by the Legislature. The city points to St.1909, c. 486, § 30, which requires public advertising of all contracts worth over $2,000, unless the mayor authorizes otherwise in writing. ⁵ General Laws c. 30B, § 5(c )(5), requires that all municipal procurement contracts worth more than $10,000 be advertized. ⁶ There is no provision in c. 30B for waiver of such...