306 Mass. 535 | Mass. | 1940
The petitioner seeks to recover from the Commonwealth the contract price which he claims is owed to him under four alleged contracts by each of which he was to make certain specified “Alterations and Repairs caused by hurricane ” at a named State armory. The total sum involved is over $17,000. It is conceded that the petitioner
It.was provided by G. L. (Ter. Ed.) c. 29, § 26, that “No obligation incurred by any officer or servant of the commonwealth in excess of the appropriation for the office, department or institution which he represents shall impose any liability upon the commonwealth.” See now St. 1939, c. 502, § 12. See also G. L. (Ter. Ed.) c. 29, § 27, as amended by St. 1937, c. 359, and now as amended by St. 1939, c. 502, § 13. Adams v. County of Essex, 205 Mass. 189. Peters v. Medford, 295 Mass. 588, 591, 592. Continental Construction Co. v. Lawrence, 297 Mass. 513. St. 1938, c. 356, which was the general appropriation bill enacted in May of that year, contains in § 3 this provision, “No liabilities in excess of appropriations provided for under this act shall be incurred by any department or institution, except in cases of emergency, and then only upon the prior written approval of the governor and council.”
The case has been argued by both parties on the theory that the regular appropriations for 1938 as set forth in St. 1938, c. 356, were not adequate, and that the appropriation necessary to support these contracts must be found, if at all, in St. 1938, c. 507, enacted at a special session of the Legislature held after the hurricane of September 21, 1938.
The determinative facts are scarcely in dispute. On September 24 the Governor and Council voted that due to an extraordinary situation on account of the hurricane and floods, an emergency existed, and that pursuant to St.
itein “Service of Militia.
131a Adjutant General, including expenses
of Massachusetts National Guard $321,900 00.”
The figure mentioned in this item is the same as the total of the items in the “report” made by General Cole to the committee on ways and means. There is no item specifically designated for repairs on armories. There is no other item for any military activity. It is further provided in the act that the sums set forth are made available “subject to the provisions of law regulating the disbursement of public funds and the approval thereof.”
The petitioner contends that the appropriation necessary to the validity of his contracts is to be found in this item
Neither “Militia” nor “Adjutant General” is a usual designation of a State department. When used together, with “Service of Militia” as a general heading and “Adjutant General” as the subheading of the only item included under that general heading, the two expressions cannot mean more than that the designated sum may be expended for the service of the militia upon obligations incurred by the adjutant general or for the advancement of some public interest expressly or impliedly committed to his charge. They cannot give any new authority to make contracts to the State quartermaster or be construed as appropriating money for the payment of obligations previously incurred by him with respect to functions under his own separate jurisdiction. We pass without discussion the inaccurate designation of the title of the office of State quartermaster in the bodies and in the signatures of the contracts. There can hardly be doubt as to the identification of the office and of the officer. The State quartermaster is not a part of any establishment controlled by the adjutant general. He is not in most respects a subordinate or agent of the adjutant general or subject to his orders. He has separate statutory duties of his own. See G. L. (Ter. Ed.) c. 33, §§ 23, 46, 83, 110, 147, 151. See now the new c. 33, inserted by St. 1939, c. 425. Among them is included “the care and maintenance
The contracts were neither negotiated nor executed by the adjutant general. He never saw them. It does not appear that he was fully acquainted with their terms. The general finding of the judge against the petitioner carries the implication that his inferences of fact were against the petitioner. The adjutant general could not delegate to the State quartermaster any of his “official duties involving the
There was no ratification by the Legislature of the particular contracts themselves. They are not mentioned in the appropriation act. It does not appear that the Legislature ever knew of the contracts or of their terms.
What has been said disposes of all of the exceptions.
Exceptions overruled.