279 Mass. 22 | Mass. | 1932
The plaintiffs are fifteen taxable inhabitants of the town of Watertown. The defendants are the selectmen, superinténdent of streets, engineer, auditor and treasurer of the town, and the John P. Condon Corporation, the contractor. The General Crushed Stone Company, a corporation, was allowed to intervene as a party defendant. The three demurrers filed to the bill and amended bill were sustained on the first and fourth grounds and the questions raised by the demurrers reported to the full court. The demurrers are identical in the statement of the first ground, namely, that the plaintiffs “have not stated such a case as entitles them to any relief in equity against the defendants.” Two of the demurrers are substantially in the same form in the statement of the fourth ground, namely, “That it appears by the plaintiffs’ petition that in doing the acts complained of, the defendants Edward P. Furber, Eric L. Johnson, Clifford S. Lovell, Pierce P. Condon, Otis W. Allen, Willie W. Norcross, Jr., and Harry W. Brigham, were acting in the performance of the public duty imposed by law.” The town officials in stating their fourth ground of demurrer have used the same language but added at the end the words “and within their discretionary powers.”
The bill purports to be brought under G. L. c. 40, § 53, which reads as follows: “If a town or any of its officers or
A statement of facts, substantially as follows, may be found in the bill and amendment thereto: In 1930 the John P. Condon Corporation was awarded a contract for paving part of North Beacon Street in Watertown and laid the paving with material manufactured in and supplied from the quarries of The General Crushed Stone Company, a corporation having a usual place of business in the town of Winchester. A corporation operating in these quarries was in 1930 a licensee of the Amiesite Asphalt Corporation of America which then held and still holds a patent upon the materials used. In 1931 the town made an appropriation for extending the paving of North Beacon Street and also the paving of a part of Pleasant Street, and on September 24 and 25, 1931, the selectmen advertised for bids on the resurfacing referred to and specified “Winchester Non-Skid Bituminous Concrete Pavement,” a material prepared and sold by the defendant The General Crushed Stone Company and which had been used in 1930 to resurface a portion of one of the streets. One of the nine bids was submitted by a man named McCue, who, instead of bidding on the “Winchester” material called for in the specifications, based his bid on a material called “Amiesite.” McCue had attempted unsuccessfully to secure a price from The General Crushed Stone Company on the specified material. The selectmen rejected all bids, and on October 15 and 16, 1931, again advertised asking for bids for resurfacing portions of the two streets. This time they asked for bids on five types of specifications, the third of which, called “Type C,” is alleged to be substantially and with
In their original bill the plaintiffs sought to restrain the
The allegations in support of the charges of bad faith, collusion and favoritism are, in substance, that the superintendent of streets is the father of the treasurer of the defendant John P. Condon Corporation, and the fathertin-law of the clerk of that corporation; that the selectmen are republicans, and the president of the John P. Condon Corporation is a member of the republican State committee; that the superintendent of streets refused to give a copy of the specifications to counsel for McCue unless counsel would state the name of the contractor whom he represented; that one of the selectmen had seen the correspondence of counsel for McCue with The General Crushed Stone Company and that the company had seen the correspondence of counsel for McCue with the selectmen; that the selectmen on the morning following the awarding of the contracts signed them without giving notice thereof to McCue or his counsel or to any of the plaintiffs or to the public; and that notwithstanding notice of a taxpayers’ bill the work under the contracts was continued and completed by the contractor. Only facts well pleaded are admitted by the demurrer. Legal conclusions and evidentiary matter are not admitted. Putnam v. Scahill, 266 Mass. 537. General charges of bad
The general aim of G. L. c. 40, § 53, has been said to be to furnish a prompt and effective remedy to restrain cities and towns from raising, borrowing or expending money for purposes not authorized by law. Fuller v. Trustees of Deerfield Academy, 252 Mass. 258. It “looks to the prevention of expenditures and the incurring of obligations which a town or city has no legal or constitutional right to make or enter into. It does not authorize the correction of wrongs wholly executed and completed . . . and except in extraordinary conditions, of which Frost v. Belmont, 6 Allen, 152, and Welch v. Emerson, 206 Mass. 129, are illustrations, the statute does not authorize an order for the return of past illegal payments.” Morse v. Boston, 260 Mass. 255, 264. Reilly v. Selectmen of Blackstone, 266 Mass. 503. The town of Watertown had the right to raise and expend money and to incur obligations for the purpose of constructing or repairing public ways and for material used and labor employed thereon. G. L. c. 40, § 5 (4). The expenditure which by the terms of the statute may be enjoined is one “for any purpose or object or in any manner” which is illegal. There is no illegality alleged as to the appropriation or the manner of advertising for bids and it is alleged that the lowest bid was accepted and the contract let to the lowest bidder. The alleged infringements of patents which might expose the town to litigation by owners or licensees of the patents do not invalidate the contracts or
Decree affirmed.