James Const. Co. v. Commissioner of Public Health
| Decision Date | 31 May 1957 |
| Citation | 336 Mass. 143,143 N.E.2d 206 |
| Parties | JAMES CONSTRUCTION COMPANY, Inc. and another, v. COMMISSIONER OF PUBLIC HEALTH and others. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Vincent M. Banks, Daniel J. Ryan, Boston, for plaintiffs.
Joseph H. Elcock, Jr., Asst. Atty. Gen., for defendant Commissioner of Public Health.
Lester S. Cramer, Boston, Bernard Kaplan, for defendant R. Zoppo Co., Inc.
Before WILKINS, C. J., and RONAN, SPALDING, COUNIHAN and CUTTER, JJ.
This is a bill for a declaratory decree and other relief involving the legality of a general contract awarded by the department of public health for the construction of a sewage treatment plant in Southbridge. Demurrers by the defendants commissioner of public health and R. Zoppo Co., Inc., were sustained by the court below, and a final decree was entered dismissing the bill as to these defendants. 1 The plaintiffs appealed.
The averments of the bill, as amended, may be summarized as follows: The department of public health invited sealed bids for the construction of a sewage treatment plant in Southbridge. According to the notice to contractors, all bids for the project were subject to the provisions of G.L. (Ter.Ed.) c. 149, §§ 44A-44E (see St.1939, c. 480; St.1954, c. 645). The plaintiff James Construction Company, Inc. (hereinafter called James), and the defendant R. Zoppo Co., Inc. (hereinafter called Zoppo), each submitted a bid for the general contract. At the public opening of the general bids on March 7, 1956, the department of public health found the Zoppo bid to be the lowest and the James bid to be the second lowest. The Zoppo bid included as part of item 2 (see St.1954, c. 645, § 3) a subbid in its own name for the plumbing and outside piping work. Zoppo is not a licensed master plumber under the laws of the Commonwealth, is not qualified to engage in the plumbing business, and is unable to obtain union labor to perform plumbing work. Zoppo in submitting its subbid did not use the proper bid form required by law. The James bid included as part of item 2 a subbid for plumbing and outside piping, in the name of the plaintiff James F. McGlame, Junior, hereinafter called McGlame. By letter dated March 15, 1956, the department advised McGlame that all the subbids for the plumbing and outside piping work had been rejected. The general contract for the project has been awarded to Zoppo, whereas in fact James was the lowest responsible bidder.
After alleging the foregoing, the bill states that an actual controversy exists involving the validity of both the subbid and the general bid submitted by Zoppo. The bill asks that the Zoppo general bid be declared invalid, that the award of the general contract to Zoppo be quashed, and that James be declared the lowest responsible and eligible bidder for the general contract.
Dukes County v. New Bedford, Woods Hole, Martha's Vineyard & Nantucket Steamship Authority, 333 Mass. 405, 406, 131 N.E.2d 206, 207. Cases may arise where the plaintiff has failed to state a case presenting a controversy proper for determination under the declaratory procedure and in such a case there is no reason why a demurrer may not be sustained Brown v. Neelon, Mass., 140 N.E.2d 213. However, it is not necessary for us to decide whether as a technical matter the demurrers here should have been sustained. The appeal from the final decree brought here the question of discretion whether a declaratory decree ought to be entered. Dukes County v. New Bedford, Woods Hole, Martha's Vineyard & Nantucket Steamship Authority, supra, 333 Mass. at page 407, 131 N.E.2d at page 208. G.L.(Ter.Ed.) c. 231A, § 3. For reasons to be stated hereinafter the bill was correctly dismissed.
The bill does not contain sufficient allegations that the provisions of G.L. (Ter.Ed.) c. 149, §§ 44A-44E, governing the award...
To continue reading
Request your trial
-
Moskow v. Boston Redevelopment Authority
...318 Mass. 677, 679, 63 N.E.2d 583. Cabot v. Assessors of Boston, 335 Mass. 53, 58, 138 N.E.2d 618. James Constr. Co. Inc. v. Commissioner of Pub. Health, 336 Mass. 143, 146, 143 N.E.2d 206. Joyce v. Hickey, 337 Mass. 118, 123, 147 N.E.2d 187. J. J. Gordon, Inc. v. Worcester Telegram Publish......
-
West Broadway Task Force, Inc. v. Commissioner of Dept. of Community Affairs
...425 F.2d 853, 856, 865 (2d Cir.); McQueen v. Druker, 438 F.2d 781, 782, 784 (1st Cir.).11 See James Constr. Co., Inc. v. Commissioner of Pub. Health, 336 Mass. 143, 146--147, 143 N.E.2d 206; Nickols v. Commissioners of Middlesex County, 341 Mass. 13, 22--25, 166 N.E.2d 911; Turnpike Amuseme......
-
Modern Continental Const. Co., Inc. v. City of Lowell
...See, e.g., Deary v. Dudley, 343 Mass. 192, 194, 178 N.E.2d 83 (1961) (sewer not a building); James Constr. Co. v. Commissioner of Pub. Health, 336 Mass. 143, 147, 143 N.E.2d 206 (1957) (whether sewage treatment plant a building not decided); Wilbur v. Newton, 307 Mass. 191, 194, 29 N.E.2d 6......
-
Robie v. Massachusetts Turnpike Authority
...States, 324 Mass. 639, 647, 88 N.E.2d 121, cert. den. 338 U.S. 948, 70 S.Ct. 487, 94 L.Ed. 585; James Constr. Co., Inc. v. Commissioner of Pub. Health, 336 Mass. 143, 146, 143 N.E.2d 206; Cushing v. Fire Commr. of Brookline, 345 Mass. 418, 422, 187 N.E.2d 804. See McCarthy v. Commonwealth, ......