Safford v. City of Lowell

• Decision Date: 02 March 1926
• Citation: Safford v. City of Lowell, 255 Mass. 220 (Mass. 1926)
• Court: Supreme Judicial Court of Massachusetts
• Parties: ARTHUR T. SAFFORD & others v. CITY OF LOWELL & others.

255 Mass. 220

ARTHUR T. SAFFORD & others v. CITY OF LOWELL & others.

Supreme Judicial Court of Massachusetts, Middlesex.

March 2, 1926

November 17, 1925.

Present: RUGG, C.

J., PIERCE, WAIT & SANDERSON, JJ.

Lowell.Municipal Corporations, Plan B charter.

Statute, Repeal.Equity Jurisdiction, Suit by ten taxable inhabitants under G.

L.c. 40, Section 53, Laches.Words, "Special emergency,""More or less."When the city of Lowell adopted Plan B form of charter, the provisions of

Sections 30,31, of its former charter, St. 1921, c. 383, were superseded by the provisions of G.L.c. 43, Sections 28,45, and became of no effect.

In April, 1925 when the city of Lowell was under the Plan B form of charter the mayor determined that an "extreme emergency" called for immediate repair of streets and made a requisition upon the purchasing agent to furnish a quantity of a certain material.The purchasing agent, without calling for bids or public advertisement, in the name of the city made an agreement under seal with a contractor to furnish two hundred tons of the material "more or less," at a price per ton which amounted to more than $200 for the bulk.In a suit in equity by ten taxable inhabitants under G.L.c. 40, Section 53, to prevent payments under the contract, the defendants contended that the contract was justified because it was made in a "special emergency involving the health or safety of the people and their property."A master who heard the suit, after reciting findings as to the condition of the streets, found that no such case "of special emergency" existed.It appeared that, as early as February, it had been evident what the condition of the streets in April would be if nothing were done.Held, that

(1) The language used in the statute does not apply to a condition which may clearly be foreseen in abundant time to take remedial action before serious damage to the health or to the safety of persons or property is likely to occur;

(2) As a matter of law, no special emergency within the language of the statute confronted the defendants in April, 1925.

(3) The contract was unlawful and a decree should be entered enjoining payments by the city thereunder.

The alleged contract above described was entitled "Articles of Agreement," and it bore the seal of the city and the seal of the contractor.In it the contractor agreed and promised to furnish "two hundred tons, more or less" of the material and "in consideration" of the promise and agreement by the contractor the city promised and agreed to pay the contractor "for the above mentioned material and articles, delivered and accepted the prices set forth in the list attached."Held, that the instrument was a contract and, being for more than $800, was within the terms of G.L.c. 43, Section 28.

A finding by a master that there had been no laches in the bringing of the suit above described could not be said to be wrong where it appeared that the suit was brought thirty-five days after the execution of the contract, when $7,896.88 had been paid to the contractor at $10.50 per ton, and material amounting to $11,873.16 had been delivered and was not paid for, and, although any citizen could have observed that material was being furnished and applied in amounts greater than the city plant could supply, there was no evidence at what time any of the plaintiffs first learned of the contract.

Good faith on the part of the officials of the city in the making of the contract above described was no bar to the suit.

BILL IN EQUITY, filed in the Supreme Judicial Court for the county of Middlesex by twelve taxable inhabitants of Lowell on May 20, 1925, under G.L.c. 40, Section 53, to prevent payments to the defendantGeorge P. Legrand under the provisions of the contract described in the opinion.

The suit was referred to a master.No objections nor exceptions to the report were filed and, by order of Braley, J., an interlocutory decree was entered confirming the report.The suit then was reported to this court by the single justice for determination upon the pleadings, the master's report and the interlocutory decree confirming the report.

The case was submitted on briefs.W.D. Regan & A.C. Spalding, for the plaintiffs.

P.J. Reynolds, City Solicitor, J.J. Hogan & W.A. Hogan, for the defendants.

WAIT, J.The plaintiffs are taxpayers of the city of Lowell who bring their bill under G.L.c. 40, Section 53, to restrain an expenditure of money by the city.The defendants, other than the city, are the mayor, treasurer, auditor, purchasing agent, and the members of the board of public service of Lowell, with one Legrand.

The cause was heard by a master and is reported to us for determination upon the pleadings, the report of the master and an interlocutory decree confirming the report.The facts set forth in the report of the master, so far as they are purely questions of fact, are not disputed.

Prior to January 1922, the charter of the city was St. 1921, c. 383; but, in 1921, the citizens adopted a Plan B charter under G.L.c. 43, which went into effect in January, 1922.The board of public service was constituted under

St. 1921, c.

383, but continued to function in the construction, repair, care and maintenance of the streets and highways of the city after the Plan B charter went into effect.Early in 1925 the streets were in great need of immediate repair and the only practical material for speedy temporary repair was "cold patch" a mixture of broken stone and a petroleum product.After an examination of the streets made some time in March, the mayor determined that an "extreme emergency" existed therefor and, with his approval, the board of public service, on April 15, 1925, made requisition upon the purchasing agent to "furnish for the use of the Street Department . . . 200 tons, more or less, of cold patch material, all mixed to be delivered on the job in such quantities, and such sizes, and at the places designated by the Supt. of Streets.

" Specifications were to be furnished by the city engineer.The material was to be purchased of "Indian Head Const. Co." the name under which Legrand did business.The requisition contained also a list of prices per ton which varied with the place of delivery, and with the number of tons per day called for by the city.Pursuant to this requisition written "Articles of Agreement" were executed on April 15, 1925, by "Indian Head Construction Company by George P. Legrand" and "The City of Lowell ByEdward J. Donnelly Purchasing Agent."The seal of the city was affixed and Legrand also attached a seal to his signature.These articles witnessed "That . . . [Legrand did] promise and agree at his own expense and risk to furnish and deliver in said City of Lowell at such times and places as shall be designated by said Purchasing Agent the following Two hundred tons, more or less, Cold Patch Material" as set out in the requisition; and "in consideration" of the foregoing promise and agreement of Legrand, the city "promises and agrees to pay to" Legrand "for the above mentioned material and articles, delivered and accepted the prices set forth in the list attached."

Delivery under this agreement began at once; and one thousand, nine hundred twelve and twenty-four hundredths tons of "cold patch" were delivered, accepted and used on the streets at $10.50 per ton.This bill in equity was filed on May 20, 1925.Before that date $7,896.88 was paid by the city to Legrand and $11,873.16 remained unpaid.

No public advertisement for bids for the material was made.The master set out in his report in much detail a description of the condition of the streets and of the causes therefor.He found, so far as it was a question of fact, that no "extreme emergency" or case "of special emergency involving the health or safety of the people or their property" existed.

The defendants justify their action in neglecting to call for bids for these materials by public advertisement, under St. 1921, c. 383, Sections 30 and 31.Section 30 provided for a board of public service which among other duties was given charge of the construction, repair and care of streets, and in Part 11, required public advertisement and competition for "All contracts for more than five hundred dollars."Section 31 prescribes the duties of the purchasing agent, and provides that "The purchasing agent shall purchase and contract for all materials or supplies for all departments of the city, subject to approval by the mayor.He shall make no purchase of materials or supplies, except in cases of extreme emergency, exceeding in cost a sum of fifty dollars without first calling for bids thereon by public advertisement. . . .The entire unit of quantity specified by the requisition shall first be submitted to competitive bids. . . .No splitting of a requisition to avoid calling for bids as specified in this section shall be lawful, unless in cases of extreme emergency. . . .The mayor shall be the sole authority to determine a case of extreme emergency. . . ."

These sectionsthey contend were in force, notwithstanding the change to the Plan B charter, by virtue of G.L.c. 43, Section 5, which enacts that ". . . the powers and duties of the officers and employees of any city adopting any of the plans provided for in this chapter . . . shall remain as constituted at the time of the adoption of such plan . . ."...