Fluet v. McCabe

• Decision Date: 03 January 1938
• Citation: 299 Mass. 173,12 N.E.2d 89
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: EUGENE FLUET & others v. JAMES A. MCCABE & others.

299 Mass. 173

12 N.E.2d 89

EUGENE FLUET & others v. JAMES A. MCCABE & others.

Supreme Judicial Court of Massachusetts, Essex.

January 3, 1938

November 15, 1937.

Present: FIELD LUMMUS, QUA, DOLAN, & COX, JJ.

Municipal Corporations, Contracts, Officers and agents. Agency, Scope of authority. Contract, Validity, Of municipal corporation. Lawrence.

The director of public buildings of the city of Lawrence was authorized by implication of its charter to contract for such labor as was required for repair work on such buildings, subject to charter provisions as to appropriations being available and also to the supervision and control of a majority of the city council.

PETITION, filed in the Superior Court on September 11, 1936. The case was heard by Williams, J. The petitioners appealed from a final decree.

The case was submitted on briefs. H. V. Charbonneau, for the petitioners.

M. A. Cregg, for the respondents.

COX, J. This is a petition in equity under G. L. (Ter. Ed.) c. 40, Section 53 by thirteen taxable inhabitants of the city of Lawrence to restrain the alleged illegal payment of money from the city treasury. The respondent Eberhardt, hereinafter referred to as Eberhardt, is an alderman and as such is director of the department of public property of the respondent city. Other respondents are the auditor, treasurer and purchasing agent. The remaining respondents, who are copartners doing business as E. A. McCabe & Co., hereinafter referred to as McCabe & Co., assert a claim for certain labor performed for the city.

The case was referred to a master. The evidence is not reported. Therefore the findings of fact made by the master must be accepted as true unless on the face of the report they are mutually inconsistent or contradictory and plainly wrong. MacLeod v. Davis, 290 Mass. 335 . Kasper v. H. P. Hood &amp Sons, 291 Mass. 24 .

The master found that in June and July, 1936, an inspector of the Hartford Steam Boiler Inspection and Insurance Company, "either at the request of, or at least with the consent of the city," made an inspection of all the boilers in its public buildings, this having been the practice followed by the city for years. The inspector sent to the "commissioner in charge," Eberhardt, "who had had charge of this repair work for six years prior to 1936," a separate report of his inspection for each boiler and recommendations for repairs. It would have been impossible for the inspector or Eberhardt or any other person to determine from an inspection of the boilers what amount of work or materials would be necessary to place the boilers in good working condition. Upon receipt of the inspection reports, Eberhardt had all the steam fitting and all the work on cast iron boilers done by employees of the city. What work could not be done by city employees was ordered to be done by McCabe & Co., who had performed similar work for the city for the past forty years. The labor was not ordered at one time, but was sent piecemeal to McCabe & Co., and no single order for labor exceeded $500, although the total labor charge was $881.50. The charges for this labor were to be paid from the general appropriation for general expense and, at the time the orders for labor were given, there were sufficient funds in the appropriation to pay the charges. The materials for the work were ordered by Eberhardt by means of requisitions sent to the purchasing agent of the city, who in turn furnished McCabe & Co. with orders for every item charged for by them. The total charges of McCabe & Co. were $1,542.05, and "no advertisement had been published by the city clerk and there had been no vote as required under the provision [of the city charter] for the immediate preservation of public peace, health or safety," nor had any "vote been passed by the city council of the city of Lawrence relative to the authority of Commissioner Eberhardt to have this labor performed or the materials supplied." The master also found, "so far as it be a question of fact," that McCabe & Co. and the city entered into separate contracts for the performance of each item of labor set forth in the petition, and that each item of labor therein was billed separately to the city; that none of the contracts entered into between McCabe & Co. and the city for labor upon the boilers of the public buildings of the city exceeded $500 or violated the provisions of the city charter. All the bills were approved by the proper city officials. No question was raised but that McCabe & Co. performed the labor and furnished the materials set out in the petition and that the charges therefor "were fair and reasonable." The master's findings as to the liability of the city for materials or supplies furnished by McCabe & Co. need not be considered as they were favorable to the petitioners, and the only appeal here is that of the petitioners. Twenty-six items or charges for labor appear in the schedule annexed to the petition, the largest being for $121.50 and the smallest for $13.50. The period of time within which this labor was performed was from August 3 to August 31, inclusive. The petitioners filed four objections to the master's report: (1) because he found that McCabe & Co. and the city entered into separate contracts for the performance of each item of labor; (2) because he found that none of the contracts for labor upon the boilers exceeded $500; (3) because he did not find and rule that the whole sum for labor and materials formed one entire contract for a sum exceeding $500; (4) because he found that he was not satisfied that Eberhardt knew or could reasonably have been expected to know that the cost of materials and labor for the repairs suggested by the inspector would exceed $500. An interlocutory decree overruling the exceptions and confirming the master's report, and a final decree enjoining the city and its respondent officials from paying, and McCabe & Co. from collecting from the city, any money for any of the supplies furnished, with costs to the petitioners, were entered. The injunction did not extend to payment for the labor discussed in this opinion. The petitioners appealed from both decrees.

The petitioners contend that (1) Eberhardt had no authority to make a contract with McCabe & Co. for repairs on public buildings; (2) the amount sought to be collected by

McCabe & Co. was under a contract entered into in violation of the city charter; (3) the decree should be so modified as to enjoin the payment of all the items set forth in the schedule annexed to the petition, which include the charges for both labor and materials.

The charter of the city of Lawrence is St. 1911, c. 621, Part II, as amended by St. 1914, c. 363. (See G. L. [Ter. Ed.] c. 43, Sections 64-78.) The government of the city and the general management and control of all its affairs are vested in a city council consisting of a mayor and four aldermen, all of whom are elected at large. The administration of all affairs of the city, except the affairs of the schools, is divided into five departments, each managed by a member of the city council. One of these is the department of public property, which includes the following subdepartments and all boards and offices connected therewith, namely, "buildings, parks and public grounds." Prior to 1914, except for the department of finance, which was specifically allotted to the mayor, the city council was required to designate one alderman to be director of each of the other departments, but the amendment, St. 1914, c. 363, provided in effect that thereafter, as vacancies occurred, each alderman should be elected "to be director" of the department for which he was a candidate. The city council, however, by a four-fifths vote, when it is deemed necessary for the interests of the city, can change the distribution of the executive and administrative powers, authorities and duties among the five departments, except as to matters of finance. Under the subtitle, "Powers of City Council," it is provided that the city council shall determine the policy to be pursued and the work to be undertaken in each department but each member of the city council shall have full power to carry out the policy or have the work performed in his department, as directed by the city council. The city council has full supervision of the erection, alteration and repair of all public buildings, including schoolhouses. Under the subtitle "Departments," among other things, it is provided that each member of the city council shall manage the department over which he is elected director, subject, however, to the supervision and control of a majority of the members of the city council, acting jointly, except as otherwise provided; and that each director shall be the administrative head of his department and, except as otherwise provided in the charter, shall have the power to appoint, suspend and remove, subject to the provisions of Section 44 and the laws of the Commonwealth, any officer, officers, board or boards in his department. Section 44 provides that appointments to any office, offices, board or boards, "except foremen and day laborers" and such offices as pertain to the school committee, shall be subject to provisions therein contained for newspaper advertisements stating any positions to be filled by the appointing director and requesting candidates to submit their candidacies to the director. Each director is...