Lynch v. City of Somerville

• Decision Date: 05 June 1950
• Citation: 326 Mass. 68,93 N.E.2d 249
• Parties: LYNCH et al. v. CITY OF SOMERVILLE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

326 Mass. 68

93 N.E.2d 249

LYNCH et al. v. CITY OF SOMERVILLE et al.

Supreme Judicial Court of Massachusetts, Middlesex.

June 5, 1950

Argued April 5 1950.

G R. Farnum, Boston (C. George Anastos, Boston, with him), for petitioners.

G. A. McLaughlin Boston (C. S. McLaughlin, Boston, with him), for respondents.

Before QUA, C. J and LUMMUS, WILKINS and WILLIAMS, JJ.

LUMMUS, Justice.

This is a petition under G.L. (Ter.Ed.) c. 40, 53, filed by more than ten taxable inhabitants of Somerville on February 21, 1949, to restrain the city of Somerville and its officers from carrying out a contract made by the city with the respondent Frank E. Ryan on December 30, 1948, for the collection of garbage from January 3, 1949, through January 3, 1954, and from making payments thereunder. A demurrer of the respondent Ryan was overruled, and he appealed. He filed also a plea in bar, which is discussed later in this opinion.

On April 27, 1949, the case was referred to a master 'to hear the parties, find the facts and subsidiary facts upon which his ultimate findings of fact or conclusions are based,' and 'report his findings to the court, together with such questions of law, arising in the course of his duty, as any party may request.'

On November 9, 1949, by an interlocutory decree, the master's report was confirmed, and the plea in bar of the respondent Ryan was overruled. The respondent Ryan appealed. On December 23, 1949, a final decree for the petitioners was entered, following the prayers of the petition. The respondent Ryan appealed.

The charter of Somerville is found in St.1899, c. 240. By St.1936, c. 183, § 1, amending the charter as to 46A, 'No contract * * * for the disposal of garbage, refuse of offal * * * the estimated cost of which amounts to one thousand dollars or more, except in cases of special emergency involving the health or safety of the people or their property, shall be awarded * * * unless proposals for the same have been invited by advertisements in at least one newspaper published in the city once a week for at least two consecutive weeks, the last publication to be at least one week before the time specified for the opening of said proposals.' The city, by advertisements published in a Somerville newspaper on June 17 and 24, 1948, advertised for bids for the collection of garbage according to specifications furnished by the city. Various bidders submitted bids, but the mayor rejected all of them, as he had a right to do under the charter and the advertisements. Larkin v. County Commissioners of Middlesex, 274 Mass. 437, 439, 174 N.E. 684. No further publication was made. On December 30, 1948, the mayor, acting for the city, entered into a written contract with the respondent Frank E. Ryan for the collection and disposal of garbage and offal in Somerville from January 3, 1949, through January 3, 1954. The contract required Ryan to furnish not less than six trucks during the period of the contract, for the collection of garbage and offal. The city was to pay nothing, but was to receive $100 a year. But the city was to employ and furnish two men to each truck, and the master found that the cost to the city would be $57,000 a year. That sum would be much more than $1,000, and would require advertising and proposals under the charter. No special emergency is found by the master, and it is not contended that there was any. The fact that the men to be furnished by the city were civil service employees does not show that they could be furnished without expense to the city. If not working on Ryan's trucks they could work elsewhere or be discharged. Murphy v. Third District Court of Eastern Middlesex, 316 Mass. 663, 668, 56 N.E.2d 467. The contract under attack might well increase the taxes of the petitioners. Richards v. Treasurer and Receiver General, 319 Mass. 672, 675, 67 N.E.2d 583.

The contract with Ryan did not conform to the advertisements. The advertisements provided that the contractor should furnish all the workmen at his own expense, whereas the contract required the city to furnish two men for each truck.

The provisions of the charter, already quoted, prohibiting the making of such a contract without previous advertisement for proposals, seem to us to require that the contract made shall follow the terms of the specifications furnished by the city. Frasch v. City of Prichard, 224 Ala. 410, 140 So. 394; Brutsche v. Coon Rapids, 220 Iowa 1295, 264 N.W 696; Greaves v. City of Villisca, 221 Iowa 776, 266 N.W. 805; Adams v. Leesville, 210 La. 106, 26 So.2d 370; Pasecoe v. Barlum, 247 Mich. 343, 225 N.W. 506, 65...