299 Mass. 173 | Mass. | 1938
This is a petition in equity under G. L. (Ter. Ed.) c. 40, § 53, by thirteen taxable inhabitants of the city of Lawrence to restrain the alleged illegal payment of money from the city treasury. The respondent Eberhardt, hereinafter referred to as Eberhardt, is an alderman and as such is director of the department of public property of the respondent city. Other respondents are the auditor, treasurer and purchasing agent. The remaining respondents, who are copartners doing business as E. A. McCabe & Co., hereinafter referred to as McCabe & Co., assert a claim for certain labor performed for the city.
The case was referred to a master. The evidence is not reported. Therefore the findings of fact made by the master must be accepted as true unless on the face of the report they are mutually inconsistent or contradictory and plainly wrong. MacLeod v. Davis, 290 Mass. 335. Kasper v. H. P. Hood & Sons, 291 Mass. 24.
The petitioners contend that (1) Eberhardt had no authority to make a contract with McCabe & Co. for repairs on public buildings; (2) the amount sought to be collected by
The charter of the city of Lawrence is St. 1911, c. 621, Part II, as amended by St. 1914, c. 363. (See G. L. [Ter. Ed.] c. 43, §§ 64-78.) The government of the city and the general management and control of all its affairs are vested in a city council consisting of a mayor and four aldermen, all of whom are elected at large. The administration of all affairs of the city, except the affairs of the schools, is divided into five departments, each managed by a member of the city council. One of these is the department of public property, which includes the following subdepartments and all boards and offices connected therewith, namely, “buildings, parks and public grounds.” Prior to 1914, except for the department of finance, which was specifically allotted to the mayor, the city council was required to designate one alderman to be director of each of the other departments, but the amendment, St. 1914, c. 363, provided in effect that thereafter, as vacancies occurred, each alderman should be elected “to be director” of the department for which he was a candidate. The city council, however, by a four-fifths vote, when it is deemed necessary for the interests of the city, can change the distribution of the executive and administrative powers, authorities and duties among the five departments, except as to matters of finance. Under the subtitle, “Powers of City Council,” it is provided that the city council shall determine- the policy to be pursued and the work to be undertaken in each department, but each member of the city council shall have full power to carry out the policy or have the work performed in his department, as directed by the city council. The city council has full supervision of the erection, alteration and repair of all public buildings, including schoolhouses. Under the subtitle “Departments,” among other things, it is provided that each member of the city council shall manage the department over which he is elected director, subject, how
It is a canon of statutory interpretation not to treat any words as superfluous but to give all the language some meaning and not to overemphasize one word or part at the expense of another word or part, to the end that so far as possible the enactment shall constitute a consistent and harmonious whole, capable of producing a rational result in consonance with the presumed intent of the Legislature. DeBlois v. Commissioner of Corporations & Taxation, 276 Mass. 437, 438. The well established general rule is that when a general power is given or duty enjoined, every particular power, necessary for the exercise of the one, or the performance of the other, is given by implication. Heard v. Pierce, 8 Cush. 338, 345. The court has no power to supply omissions, if there be any, to statutes. Morse v. Boston, 253 Mass. 247, 252. If a statute provides for the manner in which and by whom municipal contracts shall be entered into, the mandate is exclusive; parties contracting with the municipality are bound thereby and good faith does not warrant a violation of the statute. Morse v. Boston, 253 Mass. 247. The officers of cities and towns have only such powers to bind their municipalities by contract as are conferred by the express terms or necessary implications of statutes. Benefit to the city or town is of no consequence in this connection. Simpson v. Marlborough, 236 Mass. 210, 213. Safford v. Lowell, 255 Mass. 220, 227. Higginson v. Fall River, 226 Mass. 423.
In the light of these governing principles, one question for decision is whether Eberhardt had any authority to make a contract with McCabe & Co. for labor in repairing the boilers of the public buildings of the city.
The charter specifically provides that the city council shall have “full supervision” of the repair of all public buildings (§ 27). The word “full,” as used, clearly means entire, complete. “Supervision” is the act of one who supervises and to supervise is to oversee, to have oversight of, to superintend the execution of or performance of (a thing), or the movements or work of (a person); to inspect with authority; to inspect and direct the work of others. Eberhardt, as director of the department of public property, was required to “manage” that department, subject, however, to the “supervision and control” of a majority of the city council, acting jointly, except as otherwise provided (§ 41). To “manage” is to control and direct, to administer, to take charge of, and the words “supervision and control” comprehend an exercise of restraint or direction, of authority over, of domination and command. Then, too, Eberhardt was the “director” and “administrative” head of his department (§ 43). A “director” is one who directs, regulates, orders, controls or conducts, and “administrative” connotes of or pertaining to administration, especially management, as by managing or conducting, directing or superintending, the execution, application or conduct of persons or things.
We think that the city council as a body was not charged by the provisions of § 27 with the specific duty of attending to the details of the repair of public buildings, but that it was
It was admitted that no vote had been passed by the city council relative to the authority of Eberhardt to have this labor (of McCabe & Co.) performed or the materials supplied. We understand this admission to relate to the absence of any specific vote authorizing this specific work. We do not think the mere absence of such a vote, in view of the master’s findings, is decisive of want of authority in Eberhardt to contract for the labor.
What we have said disposes of the other contentions of the petitioners including the only exceptions which have been argued. We treat the others as waived. O’Shea v. Hurley, 248 Mass. 191, 194. The petitioners rely upon Fluet v. Eberhardt, 294 Mass. 408, but the only question for decision in that case was whether a claim for certain building materials furnished the city of Lawrence could be maintained. A schoolhouse roof needed repairs. The same respondent Eberhardt directed his superintendent “to get a roofer and have the roof fixed.” As a result a roofer was hired to do the job, and directed to make whatever repairs were necessary. He did this, furnishing the needed materials which amounted to over $600. In the bill submitted to the city the items for supplies and labor were carefully separated. No question was raised as to the labor items. The supplies were not purchased by the purchasing agent. The court held that under the charter the supplies or materials could lawfully have been purchased only by the purchasing agent and that the contract by Eberhardt was without authority on his part and hence did not bind the city. We think the cases are distinguishable.
The result is that the interlocutory and final decrees are
Affirmed.