Worthington v. City of Boston

• Decision Date: 11 January 1890
• Citation: 41 F. 23
• Parties: WORTHINGTON et al. v. CITY OF BOSTON.
• Court: U.S. District Court — District of Massachusetts

41 F. 23

WORTHINGTON et al. v. CITY OF BOSTON.

United States Circuit Court, D. Massachusetts.

January 11, 1890

This is an action to recover damages for an alleged breach of contract, dated May 19, 1885. By this contract the plaintiffs were to furnish two high-service pumping-engines for the city of Boston for the sum of $106,575. The city of Boston refused to receive the engines on the ground that the Boston water board, through whom the contract was made, had no authority to make any contract involving more than $10,000 without first advertising for proposals, which was not done in this case. It is admitted that the damages sustained by the plaintiffs, if the defendant is liable on the contract, are $35,000. The case can be better understood by referring to some portions of the agreed statement of facts.

The city of Boston was, previous to 1875, and ever since has been, authorized to take water from Lake Cochituate, (called also, 'Long Pond,') Sudbury river, and Mystic lake build and maintain aqueducts, dams, reservoirs, lay pipes establish hydrants, and supply its inhabitants with water, in such manner, and by such agents, officers, and servants, as the city council shall from time to time ordain, appoint, and direct, and previous to the year 1875 had established the Cochituate water board and the Mystic water board to exercise these powers, subject to the ordinances and orders of the city. Chapter 80 of the Statutes of Massachusetts for the Year 1875, so far as it is material in this case, is as follows:

'The city council of the city of Boston may establish by ordinance a water board, to be known as the 'Boston Water Board,' consisting of three able and discreet persons, to be appointed by the mayor, with the advice and consent of the city council, and to receive such compensation as the city council may from time to time determine. The said board may be empowered by said city council to exercise all or any of the powers conferred by the statutes of the commonwealth upon the city of Boston with reference to supplying said city with water, or of the Cochituate and Mystic water boards, and also to act as the agent of the city of Boston in doing any or all things which the city is now authorized to do in relation to the taking of lands, water-rights, and other property, and the establishment and maintenance of works and appliances for supplying the city of Boston or other cities and towns with pure water; * * * and the said Boston water board shall, so far as the city council of said city may by ordinance prescribe, succeed to all the powers and duties formerly vested in said Cochituate water board and Mystic water board.'

The city council of said city, with the approval of the mayor, on the 22d day of March, 1876, passed an ordinance, which continued in force until after the time of making the contract declared on, the parts of which material to this case are as follows:

'There shall be a board to be known as the 'Boston Water Board,' and to consist of three members. Said board shall have and exercise all the powers, so far as such powers can be legally delegated by the city council, which were granted to the city by, or are held by the city under, chapter one hundred and sixty-seven of the Statutes of the Commonwealth of the Year Eighteen Hundred and Forty-Six, chapter one hundred and seventy-seven of the said Statutes of the Year Eighteen Hundred and Seventy-two, and by or under any and all statutes in addition to either of the before-mentioned chapters; subject, however, to the authority of the city council, from time to time, by ordinances, orders, or resolutions, to instruct said board, and to change and limit their powers. Such board may, subject to the approval of the mayor, sell or lease such of the property connected with the water-works as they deem expedient, and all necessary deeds and leases shall be executed by the mayor, and countersigned by the chairman of said board. No contract or purchase which is estimated to involve an expenditure of more than ten thousand dollars, except a contract for the laying of pipe, shall be made by the said board until they have advertised, as hereinafter provided, for sealed proposals therefor. When advertisements for such proposals are made, plans and specifications of the work to be done, and schedules of the materials or supplies to be furnished, shall be placed on file in such office as may be designated by said board, and shall at all times during office hours be open to public inspection. The advertisement shall in all cases be inserted not less than five times in each of three newspapers published in the said city, and it may be inserted also, if said board deem it expedient, in newspapers of other cities or towns, and the last publication shall be at least one week before the time fixed for opening the proposals. Each proposal shall conform to the specifications and requirements of the advertisement, shall be inclosed in a sealed envelope addressed to said board, and shall be accompanied by a bond to the city, with sufficient sureties, in such sum, not less than five hundred dollars, as said board may specify in their advertisement, and conditioned to be void if the party making the proposal shall, in case of the acceptance of his bid, sign and deliver to said board, within the time required in their advertisement, a contract for the performance of the subject-matter of his proposal; and if he shall also, at the time of the delivery of such contract, give a further bond, with satisfactory sureties, for the performance of such contract. But, instead of the before-mentioned bond to accompany a proposal, a deposit of money or other collateral satisfactory to said board may be made as security for the signing and delivery of the contract, and of the bond for the performance thereof., for the performance of the contract, a bond, with sureties, shall in all cases be required when the contract is signed and delivered. All proposals shall be publicly opened at the time and place designated in the advertisement, and the said board may reject any or all bids which are offered, and it shall be their duty to reject the bids of all irresponsible parties.'

The Cochituate water department comprises that part of the city waterworks which is employed in supplying the city with water from Lake Cochituate and Sudbury river to Chestnut Hill reservoir, the aqueducts from said sources to, and the pipes supplied from, the reservoir, and the pumps, machinery, etc., appurtenant thereto, and for several years prior to 1884 the matter of extending the high-service works of the Cochituate department was before the city council. In 1881, the Boston water board submitted to the city council an estimate of the cost of such extension, amounting to $743,600. On November 17, 1884, the board submitted to the city council another estimate of the cost of such extension, amounting to $765,600. On December 23, 1884, the following order, duly passed by the city council, was approved by the mayor:

'Ordered, that the city treasurer be authorized to borrow, under the direction of the committee on finance, and at such a rate

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