Treasurer of Norfolk County v. County Com'rs of Norfolk

• Decision Date: 11 April 1979
• Citation: 387 N.E.2d 1175,7 Mass.App.Ct. 368
• Parties: TREASURER OF the COUNTY OF NORFOLK v. COUNTY COMMISSIONERS OF NORFOLK et al. (and a companion case 1 ).
• Court: Appeals Court of Massachusetts

Page 1175

387 N.E.2d 1175

7 Mass.App.Ct. 368

TREASURER OF the COUNTY OF NORFOLK

v.

COUNTY COMMISSIONERS OF NORFOLK et al. (and a companion case¹).

Appeals Court of Massachusetts, Norfolk.

Argued Feb. 14, 1979.

Decided April 11, 1979.

Seth M. Kalberg, Jr., Boston, for plaintiff.

Terry Philip Segal, Boston, for defendants.

Before GRANT, ROSE and KASS, JJ.

GRANT, Justice.

In these actions the treasurer of Norfolk County (treasurer) challenges the legality of certain bills forwarded to him by the commissioners of Norfolk County (commissioners) on warrants for payment. The treasurer does so in the first case by seeking a declaratory judgment that a series of purchases from the codefendant, a vendor of chemical supplies, ² had been made in violation of the applicable competitive bidding statute. In the companion case, commenced by the commissioners to require the payment of bills submitted in behalf of five other claimants who were subsequently joined as parties plaintiff, ³ the issue is raised by way of counterclaims in which the treasurer seeks declarations that the payment of those bills (as well as others of some of the same claimants) would be unlawful for a variety of reasons. The treasurer has appealed from judgments in both cases ordering him to make all the challenged payments.

1. The judgments were not based on the merits of the treasurer's contentions, but on a ruling by the judge who decided the cases that the treasurer is barred from obtaining declaratory relief in either case because of his failure to seek such relief within ten days after the bills had been submitted to him. The judge, in so ruling, relied upon a supposed interrelationship of two consecutive sections of G.L. c. 35, § 10, as unamended, ⁴ and § 11, as amended through St.1974, c. 694, § 1. ⁵ Under the second sentence of § 10 a county treasurer "shall pay all claims against his county within ten days after their allowance." ⁶ The last sentence of § 11 authorizes a county treasurer to "petition the (S)uperior (C)ourt for a declaratory . . . judgment to determine the legality of any order or orders" for payment drawn by the county commissioners. The judge apparently concluded, as did the master to whom the cases had been referred, that the ten-day payment provision of § 10 carries over into § 11, so as to require that a county treasurer seek declaratory relief within ten days or forfeit his right to question the propriety of any item submitted to him.

While the statutory scheme thus envisioned has an appealing simplicity, it lacks analytical support. The provision allowing a treasurer to seek declaratory relief imposes no time limit on his power to do so, and we can discern no basis for importing into that provision a ten-day requirement three sentences away in a different section of the statute which, on its face, applies only to the duty to pay bills. There is certainly nothing in the language of either provision to suggest any such incorporation by reference of one into the other. The two provisions were not even contemporaneously enacted, ⁷ and their histories after enactment have followed independent courses. ⁸ In view of the large number of bills likely to cross the desk of the treasurer of a busy county ⁹ and the strong public interest in preventing the unlawful expenditure of public funds, ¹⁰ we are persuaded that if the Legislature had intended to impose so brief a time limit on a treasurer's power to challenge such expenditures, it would have said so in clear and unmistakable terms. Compare Amherst-Pelham Regional Sch. Comm. v. Department of Educ., --- Mass. ---, --- ^A, 381 N.E.2d 922 (1978); Boston v. Hospital Transp. Servs., Inc., 6 Mass.App. ---, --- ^B, 374 N.E.2d 338 (1978).

Moreover, even if the ten-day provision of § 10 could somehow be regarded as carrying over into § 11, we would expect it to have no more drastic effect on a treasurer's power to obtain declaratory relief under that section than it does on his power to pay bills under § 10. Thus, if we were to adopt the rationale of the master and the judge, logic would force us to hold that a bill not paid within the ten-day period may not be paid at all. We are confident that the Legislature intended no such extraordinary result, and no one contends that it did. Rather, the requirement plainly falls within the well established principle that a statute which relates only to the time of performance of a duty by a public officer, though "imperative in phrase," is ordinarily construed as a mere regulation for the orderly and convenient conduct of public business rather than as a condition precedent to the validity of the act subject to the time limitation. See Boston v. Barry, 315 Mass. 572, 577-578, 53 N.E.2d 686 (1944); Amherst-Pelham Regional Sch. Comm. v. Department of Educ., --- Mass. at --- - --- ^C, 381 N.E.2d 922. If that is the role of the ten-day provision in § 10, where it is explicit, we fail to see how it could play a greater role under § 11, where it applies, if at all, only by implication.

We conclude that the treasurer was authorized to seek declaratory relief despite the expiration of the ten-day period for the payment of county bills contemplated by G.L. c. 35, § 10. ¹¹ That he did so by way of counterclaimsin the companion case, rather than by an action for declaratory judgment initiated by him, is of no consequence.

2. It remains for us to consider the merits of the several claims of illegality asserted by the treasurer in the two cases. While the judge did not reach that aspect of the cases because of the view taken by him of the ten-day provision, he did adopt the master's findings in both cases and thereby provide us with a factual basis for deciding the treasurer's claims. However, we deal with those claims only to the extent that they have been argued in the treasurer's briefs on appeal. Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).

The sole claim of illegality advanced by the treasurer in his action for declaratory relief was that a protracted series of purchases of chemical supplies from the defendant Maintenance Chemical Suppliers, Inc., during the fiscal year ending June 30, 1976, had been made in violation of G.L. c. 34, § 17, as amended through St.1973, c. 908, § 1. ¹² The master found that none of those purchases had been made on the basis of competitive bidding, that none of them individually exceeded the $1,000 figure which triggered the competitive bidding requirements of § 17, but that the purchases in the aggregate, of "similar items," greatly exceeded that amount. Thus, a violation of § 17 can be made out only if that section regulates not merely single purchases in an amount exceeding the statutory figure but also separate purchases of similar items in lesser amounts whose total exceeds that figure.

Apart from the contract-splitting prohibition in § 17 (the last of the sentences quoted in note 12), the section is silent on that point. In that respect § 17 differs materially from the corresponding provisions of such competitive bidding laws as that in the city charter of Boston (St.1909, c. 486, § 30, as amended through St.1955, c. 60, § 2), which requires competitive bidding for contracts of work or 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" (emphasis supplied). Such cases as Police Commr. of Boston v. Boston, 343 Mass. 480, 483, 179 N.E.2d 324 (1962), and Central Tow Co., Inc. v. Boston, 371 Mass. 341, 344 n.8 ^D, 357 N.E.2d 310 (1976), arising as they did under the latter statute, are therefore of no direct assistance.

The answer, we think, lies in the language of the contract-splitting provision of § 17 itself: "No purchase or contract shall be split For the purpose of evading the requirements of this section" (emphasis supplied). While neither that provision nor any of the cognate provisions of other statutes ¹³ has yet been construed in any appellate decision of this Commonwealth, we have no difficulty in concluding from the dictionary definitions (Glennon v. School Comm. of Boston, --- Mass. ---, --- ^E, 378 N.E.2d 1372 (1978)) of the words "purpose" and "evading" that the provision has no application in the absence of a specific intent to circumvent the bidding law. See Black's Law Dictionary (rev. 4th ed.), pp. 1400, 654; Webster's Third New Intl. Dictionary, pp. 1847, 786. We believe it equally clear from the very inclusion of so narrowly worded a provision as that found in § 17 that the section does not prohibit contract splitting except when accompanied by such an intent.

There is nothing in the master's findings to suggest the existence of any such intent, and none can properly be inferred. Stockus v. Boston Housing Authy., 304 Mass. 507, 511, 24 N.E.2d 333 (1939). Pacella v. Metropolitan Dist. Commn., 339 Mass. 338, 347, 159 N.E.2d 75 (1959). See Fluet v. McCabe, 299 Mass. 173, 174-175, 177-178, 181, 12 N.E.2d 89 (1938). The absence of such a finding was not the subject of any objection to the master's report filed by the treasurer; indeed, we infer from his pleadings and briefs that he never intended to level such a charge against either the commissioners or any vendor. It follows that whatever contract splitting may have been involved in the purchases from Maintenance Chemical Suppliers, Inc., has not been shown to have been in violation of G.L. c. 34, § 17, and that the judgment was right in ordering the treasurer to pay for those purchases, albeit for the wrong reason. ¹⁴

3. The treasurer also challenged one group of bills in the companion case, those of A & T Moving & Storage, Inc., ¹⁵ on the ground that they arose from services obtained in violation of G.L. c. 34, § 17. There were three such bills: two of them, in the respective amounts of $528.50 and $2,832, were occasioned by the move of the district attorney's office to a new...