Sweezey v. Mayor of Malden

• Decision Date: 05 January 1931
• Citation: Sweezey v. Mayor of Malden, 273 Mass. 536 (Mass. 1931)
• Court: Supreme Judicial Court of Massachusetts
• Parties: ARTEMAS B. SWEEZEY & others v. MAYOR OF MALDEN& others.

273 Mass. 536

ARTEMAS B. SWEEZEY & others v. MAYOR OF MALDEN& others.

Supreme Judicial Court of Massachusetts, Middlesex. May 20,

January 5, 1931

October 2, 1930.

Present: RUGG, C.

J., CROSBY CARROLL, WAIT, & SANDERSON, JJ.

Malden.Municipal Corporations, By-laws and ordinances, Contracts, Officers and agents.

An advertisement by the street commission of Malden calling for sealed proposals for furnishing and laying a pavement on a certain street which would require an expenditure by the city of more than $500 recited among other things that "Bids will be received on the following types of construction: Warrenite Bitulithic, Topeka

Bitulithic Sheet Asphalt, or equal. . . .Specifications and plans may be seen and all necessary information obtained at the office of the

City Engineer between 8:00 A.M. and 12 M. daily."An ordinance of the city read as follows: "Before making any contract for the furnishing of labor or materials, involving the expenditure of more than five hundred dollars, the committee or board having charge of the same shall prepare, or cause to be prepared, plans and specifications, advertise for public bids in the form of sealed proposals for furnishing said labor and materials in one or more of the local papers at least one week before the awarding of said contract."The commission prepared no specifications as to the composition and the manner of laying the wearing surface or the area of the construction but required bidders to submit specifications as to composition and manner of laying wearing surface with their respective bids.Bids were received and a contract was awarded.In a suit under G.L.c. 40, Section 53, to restrain the municipal officers from carrying out the contract, it was held, that

(1) It was the duty of the commission under the ordinance to furnish detailed specifications respecting the method of construction and the materials and proportions to be used;

(2) Permitting each bidder to furnish his own specifications for the construction of the wearing surface was not a compliance with the requirements of the ordinance: such a method of bidding would not result in bids being submitted on any common basis;

(3) The awarding of the contract was illegal.

BILL IN EQUITY filed in the Superior Court on November 8, 1929, and afterwards amended, described in the opinion.

The defendants demurred.The demurrer was heard by Qua, J., by whose order there were entered an interlocutory decree sustaining it and a final decree dismissing the bill.The plaintiffs appealed.

The case was submitted on briefs.J.F. Neal, for the plaintiffs.

M.L. Brown, City Solicitor, for mayor of Malden and others.J.P. Lyons, for John McCourt Company.

CROSBY, J.This is a bill in equity brought by more than ten taxable inhabitants of the city of Malden against the mayor and others, under the provisions of G.L.c. 40, Section 53, to restrain certain officers of the city from carrying out a contract, entered into and approved by said officers, for the paving of Lebanon Street.After the submission of the case on briefs the plaintiffs contended that the advertisement for bids as recited in the record is erroneous because a comma was not inserted between the words "Topeka Bitulithic" and the words "Sheet Asphalt," and that the comma appears in the original advertisement but was omitted by mistake from the printed record.It is plain that we are bound by the record and can consider the case only upon the record presented.The presence or absence of the comma is immaterial so far as the issues before us for decision are concerned.

The Revised Ordinances of the city of Malden of 1928, c. 53, Sections 14 and 15, read as follows: (Section 14)"Before making any contract for the furnishing of labor or materials, involving the expenditure of more than five hundred dollars, the committee or board having charge of the same shall prepare, or cause to be prepared, plans and specifications, advertise for public bids in the form of sealed proposals for furnishing said labor and materials in one or more of the local papers at least one week before the awarding of said contract, and that citizens and taxpayers of the city of Malden be given the preference in awarding said contracts, all other considerations being equal"; (Section 15)"In cases where competitive bids are requested by a committee or municipal board for a contract with the city, no proposals shall be received by the said committee or board unless the same are sealed.All proposals shall be publicly opened and read at the hour and place designated: provided, always, that the said committee or board may reject any or all proposals, or waive defects, when, in their judgment, the interest of the city justify such a course.In the event of the rejection of all bids as hereinbefore provided no contract involving the expenditure of more than five hundred dollars shall be awarded unless competitive bids are again requested."

The bill alleges that the defendants Reed, McGillicuddy and Hoffman, acting in their official capacity as the street and water commission caused an advertisement for bids to be published in a newspaper in Malden which called for sealed proposals for furnishing and laying a pavement on the above named street, and recited among other things that "Bids will be received on the following types of construction: Warrenite Bitulithic, Topeka Bitulithic Sheet Asphalt, or equal. . . .Specifications and plans may be seen and all necessary information obtained at the office of the City Engineer between 8:00 A.M. and 12 M. daily.The Commission reserves the right to reject any or all proposals, or to accept any proposal, should it deem it for the interest of the City of Malden to do so."The bill further alleges that "A copy of the specifications referred to in the foregoing proposal is hereto annexed and made a part of this bill and marked `A'"; that "said proposed agreement or contract involved an expenditure by the City of Malden or on its behalf of over $500"; and that "in all the types of construction referred to in said advertisement and proposal, the preparation of the sub-grade, the concrete foundation and the wearing surface are essential,...