Municipal Corporations, Prohibitions upon city council in amended charter of Lowell. Contract, Validity.
In the amended charter of the city of Lowell, St. 1896, c. 415, § 3, creates a department of supplies, and § 7 prohibits the city council from taking part in the purchase of material or in the making of contracts for the city. In the year 1900 the city council of Lowell passed an ordinance approved by the mayor, providing, "That all printed matter for the city of Lowell shall hereafter bear the imprint of the Union Label of the Allied Printing Trades Council of Lowell, Mass." and "That in calling for bids for city printing hereafter, the chief of the department of supplies shall make stipulation in accordance with" the foregoing requirement. The board of health of Lowell advertised for bids for printing certain blanks and letter heads, and accepted a bid of $24.50 from a bidder who had a right to use the union label, declaring by vote that they did so for that reason, and rejecting a bid of $16.55 from a bidder who had not the right to use the label. On a petition of more than ten taxable inhabitants under St. 1898, c. 490, to enjoin the payment of money by the city under the contract, it was held, that the ordinance was invalid, as an attempt to interfere in the making of contracts for printing, by directing with whom the contracts should be made, and was in direct conflict with the provisions of the amended charter; that, whether the ordinance applied to the board of health or not or whether or not they called for bids in accordance with it, the fair inference was that in awarding the contract that board did not exercise their untrammelled judgment but were controlled by the illegal behest of the ordinance which they supposed to be binding upon them; so that the contract was void and the money of the city was about to be illegally expended, which brought the case within St. 1898, c. 490.
HAMMOND, J.
St. 1896, c. 415, provides that in the city of Lowell there shall be a "department of supplies," that the chief of such department shall be elected by the people at the annual municipal election, and shall hold office for the next municipal year thereafter subject to removal by the mayor, "for such cause as he shall deem sufficient," and that all material and supplies for the city shall be purchased by him subject to the approval of the mayor. §§ 2, 3. It further provides that "neither the city council nor either branch thereof, nor any committee or member thereof, shall directly or indirectly take part in the . . . purchase of material," with certain exceptions not here pertinent, "nor shall they or either of them take part in the making of contracts." § 7. This statute works a great change as to the powers of the city council in the matter of making contracts. See Muldoon v. Lowell, 178 Mass. 134, 138. The ordinance of December 15, 1900, is plainly an attempt to interfere in the making of contracts for printing, by directing with whom the contract shall be made. It is in direct conflict with the statute, and is invalid for that reason alone. It therefore becomes unnecessary to consider the other and broader grounds upon which the petitioners attack it.
It is argued by the respondents that the ordinance does not apply to the board of health, and that the fact that the board invited bids from union and non-union men alike shows that they did not consider themselves bound by it. The board of health had before it bids from five different parties. The lowest bidder could not use the label prescribed by the ordinance. The two next lowest bids were equal in amount, and of these bidders one could use the label and one could not. In this state of things the board passed over the lowest bidder, and of the next two lowest bidders awarded the contract to that one, a company, who could use the label, and the record shows that it was voted to award the contract to that company "as they use the Union Label, prescribed and voted" by the ordinance. They give no other reason for their action, nor does it appear that there was any other reason. The only fair and natural inference is that in thus awarding the contract they felt bound by the ordinance and did not feel at liberty to exercise their own judgment as against it, and that they desired to make this appear on their records; and this is so whether or not the ordinance was applicable to them or whether or not they called for bids in accordance with it. It thus appearing that in awarding this contract they did not exercise their untrammelled judgment but were controlled by an illegal behest which they supposed to be binding upon them, it is clear that the contract ought not to stand. It is not legal because not made as the law requires, and no city official may properly expend money to carry it out. The respondents are about to expend money under it. In the language of St. 1898, c. 490, they are about to expend money in a manner other than that in which such city has the legal right to expend money. The case is within the statute.
Decree for the petitioners.