5 Mass. App. Ct. 416 | Mass. App. Ct. | 1977
The complaint in this matter is framed under G. L. c. 149, § 27F,
The Commissioner secured from the Municipal Court of the City of Boston nine complaints charging the defendant with violations of § 27F. The defendant was convicted on all the complaints and appealed to the Superior Court, where the single complaint now before us was submitted on the agreed facts already summarized. A Municipal Court judge, sitting in the Superior Court under statutory authority, has reported for our determination the question whether a contract such as the one already described is subject to the provisions of § 27F.
The parties, the amicus curiae and we are all in agreement that the critical question is whether the sweeping of public ways is “public” work within the meaning of § 27F. There is no legislative history which is of any assistance in answering that question.
The sweeping of public ways by motorized equipment is a function which, like street sprinkling (G. L. c. 40, § 16), is commonly performed by or under the direction of superintendents of streets and boards and departments of public works in cities and towns. See G. L. c. 41, § § 21, 66, 68 and 69. It is a function akin to several of those which the Department of Public Works of the Commonwealth (DPW) is specifically required to perform in the maintenance of State highways, and which often require the use of trucks and related equipment. See G. L. c. 81, §§13 (removal of brush) and 14 (removal of trees, tree limbs and shrubbery bordering State highways). See, generally, c. 81, § 15. It is common knowledge that all the types of work just referred to can be, and often are, performed by private contractors using their own employees and equipment rather than by the public labor force using publicly owned equipment. It appears to be common ground that the street sweeping equipment here in question fell within the ambit of G. L. c. 149, § 27F, and we have no doubt that the work called for by the contract was “public” in the sense in which that word is used in the section.
The defendant’s principal argument against the applicability of § 27F is that implicit in the words “public works” is the concept of “construction,” a factor which is noticeably absent from the present case. We think the argument overlooks the framework and the subject matter of related
We answer the question reported (see note 2, supra) in the affirmative.
So ordered.
General Laws c. 149, § 27F, inserted by St. 1960, c. 795, reads: “No agreement of lease, rental or other arrangement, and no order or requisition under which a truck or any automotive or other vehicle or equipment is to be engaged in public works by the commonwealth or by a county, city, town or district, shall be entered into or given by any public official or public body unless said agreement, order or requisition contains a stipulation requiring prescribed rates of wages, as determined by the commissioner, to be paid to the operators of said trucks, vehicles or equipment. Any such agreement, order or requisition which does not contain said stipulation shall be invalid, and no payment shall be made thereunder. Said rates of wages shall be requested of said commissioner by said public official or public body, and shall be furnished by the commissioner in a schedule containing the classifications of jobs, and the rate of wages to be paid for each job. Said rates of wages shall include payments to health and welfare plans, or, if no such plan is in effect between employers and employees, the amount of such payments shall be paid directly to said operators.
“Whoever pays less than said rates of wages, including payments to health and welfare funds, or the equivalent in wages, on said works, and whoever accepts for his own use, or for the use of any other person, as a rebate, gratuity or in any other guise, any part or portion of said wages or health and welfare funds, shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars.”
The question actually posed by the judge is, “Does Mass. Gen. Laws, Chapt. 149, Section 27F apply to a street sweeping contract... or is such a contract, a contract for public services and not public works?” As indicated in the text of our opinion, we confine our consideration to the first branch of the question. If § 27F does not apply to the circumstances of this case, there is no need to determine whether the contract in question should be characterized as one “for public services.”
See .1959 Senate Doc. No. 188; 1960 House Doc. No. 2407; St. 1960, c. 795 (“An Act requiring payment of determined wages to operators of trucks and other equipment rented for use on public works”).
To the contrary, the record indicates that the Commissioner experienced some uncertainty as to how the operator of a street sweeper should be classified for the purpose of determining his wages.
This authority excludes the “grading and lighting of streets” from its definition of “public works.”
See G. L. c. 149, §§ 26 through 27D, as appearing in St. 1935, c. 461, and as subsequently amended. None of the amendments to any of those sections is of any present significance; it is enough to note that the quoted or paraphrased portions thereof have survived all amendments.
See also § 27E, inserted by St. 1938, § 67, which accorded, and still accords, an employment preference to local residents in connection with the “construction, reconstruction, alteration or repair of any public works” conducted under the aegis of the DPW.