Police Com'r of Boston v. City of Boston

• Decision Date: 23 January 1962
• Citation: 179 N.E.2d 324,343 Mass. 480
• Parties: POLICE COMMISSIONER OF BOSTON v. CITY OF BOSTON and others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 324

179 N.E.2d 324

343 Mass. 480

POLICE COMMISSIONER OF BOSTON v. CITY OF BOSTON and others.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 2, 1962.

Decided Jan. 23, 1962.

James W. Kelleher, Boston, for plaintiff.

William H. Kerr, Boston (David J. Saliba, Asst. Corp. Counsel, Boston, with him), for defendants.

Before WILKINS, C. J., and SPALDING, WILLIAMS, CUTTER and KIRK, JJ.

SPALDING, Justice.

In November, 1959, the plaintiff who is the police commissioner of the city of Boston, gave to the defendant Dorgan Electrical Company (Dorgan) six orders for the performance of various types of electrical work at police headquarters. Each order called for a payment of less than $1,000. The total amount of these orders was $5,757.91. Upon completion of the work Dorgan submitted bills which were transmitted by the commissioner to the city auditor with a request that they be placed on a draft for payment. This the auditor refused. There were forty-three additional orders (each for $975) given to Dorgan for electrical work but these were cancelled before completion. It is agreed that the work called for in all these orders was contemplated as a single project exceeding $2,000 in amount. None of them was awarded on the basis of competitive bidding.

In November, 1959, the commissioner gave to the defendant John J. Curtin Flooring Co., Inc. (Curtin), eight orders for flooring work at police headquarters and at other stations. Each order was for less than $1,000 and the aggregate amount of the orders was $4,635.50. Curtin performed the work and rendered bills which the commissioner transmitted to the city auditor with a request that they be placed on a draft for payment by the city treasurer. Payment was refused by the auditor. It is agreed that the work called for in these orders was contemplated as a single project exceeding $2,000 in amount. There was no competitive bidding with respect to these orders.

Also in November, 1959, the commissioner gave to one Meissner a number of orders for painting certain portions of police buildings. Each order was for less than $1,000. A number of orders, exceeding $5,400 in amount, were cancelled by the commissioner before the work was performed. Work was completed by Meissner on certain orders calling for a total payment of $1,432.61. For these orders he submitted bills to the commissioner who in turn transmitted them to the city auditor with a request that they be placed on a draft for payment by the city treasurer. The auditor refused payment. It is stipulated that the work called for in all orders was contemplated as a single project exceeding $2,000 in amount. None of these awards resulted from competitive bidding.

A controversy having arisen as to the validity of these contracts, by reason of St.1909, c. 486, § 30, and G.L. c. 149, § 44A, the commissioner brought this bill for declaratory relief. The defendants are the city of Boston, the city auditor, and the three contractors: Dorgan, Curtin, and Meissner.

The judge, after finding the foregoing facts, which were virtually undisputed, ruled that contracts for the work were subject to the provisions of St.1909, c. 486, § 30, and G.L. c. 149, § 44A. From a decree in accordance with this ruling the commissioner appealed. ¹ The evidence is reported.

Properly no contention is made as to the authority of the city auditor to disapprove the requisitions submitted by the commissioner if they were unlawful. By St.1909, c. 486, § 23, it is provided that the 'auditor may disallow and refuse to pay, in whole or in part, any claim on the ground that it is fraudulent or unlawful and in that case he shall file a written statement of his reasons for the refusal.' ² Nor is any attack made on the decree in so far as it provides that the contracts were subject to the provisions of G.L. c. 149, § 44A, as appearing in St.1956, c. 679, § 1. ³ The commissioner, however, does challenge that portion of the decree which declares that the contracts were subject to St.1909, c. 486, § 30. This is the only point argued by the commissioner and we shall confine our decision to that question.

Prior to 1885 the Boston police department was under the management of a board of three commissioners appointed by the mayor, subject to the approval of the city council. St.1878, c. 244, §§ 1-2. In 1885, the administration of the department was transferred to a board of three commissioners appointed by the Governor. St.1885, c. 323, § 1. By St.1906, c. 291, § 7, it was provided that 'The governor, with the advice and consent of the [executive] council, shall appoint a single police commissioner for the city of Boston * * *. Said police commissioner may be removed by the governor, with the advice and consent of the council, for such cause as he shall deem sufficient. * * *' Another section of that statute reads: 'The city of Boston shall provide all such accommodations for the police of said city as said police commissioner may require. All buildings and property used by said police shall be under control of said police commissioner. * * * All expenses for the maintenance of buildings, the pay of the police, clerks, stenographers and other employees, and all incidental expenses incurred in the performance of the duties of said commissioner or in the administration of said police shall be paid by the city of Boston upon the requisition of said police commissioner.' St.1906, c. 291, § 8.

The city charter of Boston (St.1909, c. 486, § 30, as amended by St.1939, c. 156, § 1, and St.1955, c. 60, § 2) requires that 'Every officer or board in charge of a department in said city * * * 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 two thousand dollars, shall * * * invite proposals therefor by advertisements in the City Record.' (This provision is largely drawn from St.1890, c. 418, § 4.) Admittedly this requirement was not satisfied in the present case. The question we are asked to decided is whether the foregoing charter provisions of the city of Boston apply to contracts for repair of buildings made by the police commissioner. In other words, is the police commissioner an 'officer * * * in charge of a department in said city?'

The commissioner argues that there is no authority for 'trenching in any way upon the complete independence of the police commissioner from the mayor and from the formal requirements of the charter.' However, it is difficult to see in what way the commissioner's authority is circumscribed. Cf. School Committee of Gloucester v. Gloucester, ...