Morse v. City of Boston

• Citation: 148 N.E. 813,253 Mass. 247
• Parties: MORSE et al. v. CITY OF BOSTON et al.
• Decision Date: 19 September 1925
• Court: United States State Supreme Judicial Court of Massachusetts

253 Mass. 247

148 N.E. 813

MORSE et al.

v.CITY OF BOSTON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 19, 1925.

Report from Supreme Judicial Court, Suffolk County.

Taxpayers' suit by Francis A. Morse and others against the City of Boston and others. Case reported on bill and demurrer thereto. Demurrer overruled.R. C. Curtis and C. P. Curtis, Jr., both of Boston, for petitioners.

J. P. Lyons, Asst. Corp. Counsel, of Boston, for city of Boston and others.

J. A. Sullivan, of Boston, for J. C. Coleman & Sons Co.

RUGG, C. J.

This is a suit in equity by 10 taxpayers under G. L. c. 40, § 53, to restrain payment of money out of the treasury of the city of Boston alleged to be contrary to law. The bill alleges the making of a contract by the city, duly executed according to law through the park commissioners, with one of the defendants, J. C. Coleman & Sons Company, hereafter called the contractor, to fill certain land with earth and gravel and loam, with other improvements. The contract was dated July 17, 1922. Further allegations are:

That the contract ‘contained an estimate that there would be required 90,000 cubic yards of earth and gravel filling, 6,000 cubic yards of similar filling for a roadway, 75,000 cubic yards of loam,’ the total being 171,000 cubic yards, and 6,000 cubic yards of earth to be excavated and used in filling, the exact quantity of which ‘to be paid for shall be determined by measurement of the space filled * * * after the material has been leveled off and rolled.’

‘On July 5, 1923, and again on May 26, 1924, the contract was amended by agreement of all parties with the approval of the defendant mayor to increase the earth and gravel filling and the loam by about 214,000 cubic yards, but always with the same unit price, together with other and minor modifications. * * * The time for completing the contract, originally fixed as July 1, 1923, was extended from time to time, and the last extension, granted May 22, 1924, extended the time for completion to October 1, 1924. * * * Monthly payments * * * have been made to the defendant J. C. Coleman & Sons Company on the basis of the filling and loam delivered in vehicles, although the quantity of filling and loam delivered as measured in vehicles exceeds the quantity of filling and loam as measured after having been permanently placed in position and rolled as required by the contract, by over one-third. The said payments upon the basis of filling and loam delivered as measured in the vehicles have been made for about 351,000 cubic yards in the sum of about $355,850.’

Actual measurements of the filling and loam in place, made at the request of the finance commission, ‘show that only between 137,000 and 172,300 cubic yards have been actually placed in permanent position,’ and that the contractor ‘has been overpaid to the extent of over $200,000.’ Thereafter, on August 8, 1924, the contract was further amended by striking out the original provisions for payments of filling and loam measured in place, and inserting in place thereof provisions for payments of filling and loam measured in the vehicles less a deduction of 10 per cent. This amendment purports and was intended to apply to filling and payments already completed as well as to future filling and payments. There are also allegations that no bids for the additional work covered by the amendments were called for or advertised, and that no signed statement by the park commissioners giving the reasons for this omissionwas published, and no written authority for the omission to call for bids was given by the mayor. The amendments to the contract are alleged to be illegal and void as contrary to law and to have been without consideration. It further is alleged that work under the contract is still in progress and that large sums of money are about to be paid to the contractor.

Several defendants demurred on the grounds, in brief, that the bill does not state a case entitling the plaintiffs to relief either in law or in equity and that the amendments to the contract were legally made and all payments thereunder lawful. The case is reported on bill and demurrer.

No question is made as to the validity of the original contract. The only issue raised, as stated by the petitioners, is whether the amendments to the contract, and in particular that of August 8, 1924, are valid. The issue is by them stated to be further narrowed in substance to the validity of the August 8th amendment, because the other amendments increasing the original estimates were made necessary by the method of payment adopted, of paying by the cubic yard of material in vehicles instead of in place as required by the contract.

The words of the controlling statutes, so far as pertinent, are in St. 1909, c. 486, § 30:

‘Every officer or board in charge of a department * * * when about to do any work or to make any purchase, the estimated cost of which alone, or in conjunction with other similar work or purchase which might properly be included in the same contract, amounts to or exceeds one thousand dollars, shall, unless the mayor gives written authority to do otherwise, invite proposals therefor by advertisement in the City Record. * * * No authority to dispense with advertising shall be given by the mayor unless the said officer or board furnishes him with a signed statement which shall be published in the City Record giving in detail the reasons for not inviting bids by advertisement.’

And St. 1890, c. 418, § 6:

‘All contracts made by any department of the city of Boston, shall, when the amount involved is two thousand dollars or more, be in writing, and no such contract shall be deemed to have been made or executed until the approval of the mayor in writing is affixed thereto * * * and no such contract shall be altered except by a written agreement of the contractor, the sureties on his or their bond, and the officer or board making the contract, with the approval of the mayor affixed thereto.’

The manifest purpose of these statutes is to put a limitation upon the wide power which otherwise officers of the city would possess to make binding contracts with reference to city work. All contracts made by or in behalf of Boston must conform to the requirements of the statutes. The design of the Legislature in enacting these provisions was to establish genuine and open competition after due public advertisement in the letting of contracts for city work, to prevent favoritism in awarding such contracts and to secure honest methods of letting contracts in the public interests. The main aim was to protect the public. Full publicity is provided as a means to that end. While there is vested in the mayor power to dispense with such advertisement, that can only be done after publication of a detailed statement of the real reasons therefor. This purpose is made more clear by reference to earlier statutes. St. 1885, c. 266, § 6; St. 1890, c. 418, §§ 4, 5, 6; St. 1909, c. 486, § 30.

[2][3][4][5] Critical comparison of these successive enactments discloses a progressive legislative intent to narrow the otherwise unlimited power of city officers, to the end that city contracts shall be free, open and honest. The statutes must be interpreted, if reasonably possible, so as to effectuate the purpose of the framers. Statutes must be interpreted as enacted. Omissions cannot be supplied by the judicial department...