277 Mass. 487 | Mass. | 1931
This is a bill in equity brought under G. L. c. 40,-§ 53, by ten alleged taxable inhabitants of the city of Marlborough against the mayor and certain other described ■officials of the city of Marlborough and the members of the Thomas P. Hurley Construction Co., a copartnership, seeking to restrain such officials from paying any money on account of, or doing any acts relating to, an alleged illegal contract between the city of Marlborough and the said construction company and to restrain the construction company from carrying on or receiving any money under the aforesaid contract. Upon the filing of the answers of the defendants the case was referred to a master to hear the evidence, find the facts and report to the court. Hearings were had before the master and his final report was duly filed on May 27, 1931. As there were no objections the report was confirmed on June 9, 1931. On the same day the cause was argued before a single justice of this court and the bill was dismissed, without costs. The case is before this court on the appeal of the plaintiffs.
It was admitted in the answer of the defendants other than the defendant Thomas P. Hurley Construction Co. that “The plaintiffs are each and every one an inhabitant in and a taxpayer of the city of Marlborough, a municipal corporation in said county of Middlesex”; that the defendants named hold the several offices or comprise the co-partnership as they are described in the bill of complaint; that the city of Marlborough by its duly accredited representatives voted for the erection of a new grade school building; that thereafter a building committee, called the “City
The master finds that said building committee, known as The Hildreth School Construction Committee, was appointed under and by virtue of an order duly passed by. the city council, dated November 17, 1930, which reads as follows: “That a committee consisting of the Mayor who will act as Chairman, as many members of the School Committee as may be designated by the Chairman of the School Committee; all the members of the City Council; three citizens who are not members of the City Council or School Committee, to be appointed by the Mayor, be vested with full power and authority to make contracts, purchase supplies and fittings and superintend the erection of a new school building to replace the Hildreth school building, and to have power to do any and all things necessary for the construction and equipment of the building, grading the grounds, etc., and to complete the same ready for occupancy according to plans to be approved by the School Committee.”
The master found that the committee held its first meeting on January 23, 1931, and chose an architect concerning the erection of the new school building; that the architect prepared the contract to be executed, under the authority of said committee, between them and the successful bidder, and the notice to be published asking for bids; that at a meeting of the committee the plans and specifications which had previously been submitted by the architect were accepted and approved by the committee and that they were also approved by members of the school committee who were present at the meeting by invitation of the building committee. It appeared that the superintendent of schools also examined and approved the same.
A motion was carried that the committee advertise in the local papers inviting contractors to submit proposals for the erection of the school building according to the plans and specifications as submitted and adopted, and the committee fixed the date for the opening of the bids as March
No contention is made by the defendants that in the allotment and award of this particular contract to the construe
As respects the publication of advertisement inviting contractors to submit proposals for the erection of the school building, the master finds “as a fact that the advertisement was inserted in the Marlborough Enterprise on March 13, 16 and 23, 1931; that in the insertion of said advertisement on March 13, at the bottom thereof, where papers usually indicate the days on which the advertisement has or is to appear, was printed ‘Mar. 13, 16, 18’; that the insertion in the newspaper for March 16 indicated as aforesaid that the advertisement had or would appear on ‘Mar. 13, 16, 23 ’ ”; that the insertion in the newspaper for March 23 indicated that the publication had or would appear “Mar. 13, 16, 23.” The master further found “that the publications of said notice on March 13, and 16, 1931, were in two successive weeks and more than seven days before the time specified for the opening of the bids; that the third publication on March 23 was in the third successive week and less than seven days before the advertised time for the opening of said bids-.” He further finds that all of said notices provided that the committee would open the bids “immediately after 8.00 p.m. on Friday, March 27, 1931. The committee reserves the right to reject any and all proposals or parts of proposals and to award the contract as it deems best for the interest of the City of Marlborough.”
As respects the authorization of the insertion of the advertisement, the master finds there was no vote of the committee authorizing the insertion of said notice on any particular date; that said architect prepared the notice for publication under the authority of the committee; and that after the preparation of said notice the clerk of said committee, by its authority, took the notice and delivered it to one Burke at the Enterprise office for publication and gave him no directions concerning the dates of publication; that thereafter the said clerk saw the advertisement as it appeared in the paper on March 13, 16 and 23, and that he identifies all three advertisements.
Decree affirmed.