Worthington v. Boston/Opinion of the Court

The facts set forth in the written stipulation of the parties bring this case within very narrow limits.

The grant of power to the water board by the ordinance of March 22, 1876, was subject to the right of the city council, from time to time, by ordinances, orders, or resolutions, to instruct the board, and to change and limit its authority, and also to the condition that no contract or purchase estimated to involve an expenditure of more than $10,000, except a contract for the laying of pipe, should be made without an advertisement for sealed proposals in the mode prescribed by that ordinance.

The contract in question did involve an expenditure of more than $10,000, and therefore was one not within the authority of the water board to make without first advertising for sealed proposals, unless, as the plaintiffs contend, the city council intended, by the ordinance of April 20, 1885, to dispense with advertising for proposals for exchanging such pumping engines and machinery as were found to be inadequate or insufficient for engies and machinery required by the plans and specifications of the new high-service extension.

We are of opinion that the contention of the plaintiffs rests upon a sound interpretation of the ordinance of 1885. The city council was empowered by the statutes of the commonwealth to create a water board with authority to exercise all the powers the city could exercise for the purpose of supplying the municipality with water, and to act as the agent of the city in establishing and maintaining works and appliances to that end. The city council having conferred upon the water board, subject to the conditions named, all the authority the city had in respect to such matters, that board could have obtained, by exchange, the new engines and machinery specified in the agreement in question, upon duly advertising for sealed proposals. It would seem, therefore, that the only object of the ordinance of 1885 could have been to enable the water board to effect such exchange by contract, without advertising for proposals.

And there were reasons why that course should be pursued, if the intention was to secure, for the purposes of the high-service extension, the improved or high-duty Worthington engine. The patent for that engine was owned and exclusively used by the firm of Henry R. Worthington, and the beneficial results ordinarily attending sealed proposals by competing bidders could not have been obtained in this instance by advertisement. Nothing could have been gained for the city by competition among bidders, one of whom only was entitled to use the patented engine it desired to obtain.

The city council had been fully informed by the water board of the cost of the high-service extension. The city engineer had recommended the purchase of the improved Worthington engine. And the city council could not have been ignorant of the fact that the proposed new engines and machinery would cost not far from $100,000, and that plans and specifications, involving an expenditure of about that amount, had been adopted by the water board, with the approval of the city engineer. It was distinctly informed by the board that the city engineer had carefully considered the whole matter, and was of opinion that the public interests would be promoted if the small engines then in use were dispensed with altogether, by 'exchange if possible,' and the larger ones, required in the extension of the high service, substituted for them. The city council was therefore asked to give the board authority 'to exchange' such pumping engines and machinery as were inadequate or insufficient for such as were required by the plans and estimates of the new high-service extension,-an authority that need not have been specially conferred, if the board was to pursue the method of advertising for proposals. The authority asked was given, not generally, but with express reference to particular plans and estimates, the expense of the exchange to be charged 'to the appropriation for high-service extension.' extension.' As that appropriation was based upon estimates furnished by the water board to the city council; as those estimates upon their face showed that the expense of engines and machinery required in the high-service extension would be large in comparison with the value of the small engines and machinery then in use, and which were to be discontinued,-the suggestion that the city council could not have contemplated an 'exchange' of engines and machinery worth only $3,500 for engines and machinery worth over $100,000, is of little moment. It is manifest that the city council was aware, when it passed the ordinance of April 20, 1885, that the water board had in mind the new improved or high-duty Worthington engine. Interpreting that ordinance in the light of all the circumstances preceding and attending its passage, we are not at liberty to doubt that the city council was aware of the recommendations of the city engineer, or that the object of the ordinance was to enable the water board, by contract, without advertising for sealed proposals from bidders, then in use for the new and improved Worthington engine, exclusively manufactured by ington engine, exclusively manufactured by the firm of Henry R. Worthington. The water board was authorized by that ordinance to create a debt for engines and machinery, not without restriction as to cost, but of the capacity 'required by the plans and estimates of the high-service extension,' lessened by such amount as could be obtained, in exchange, for the insufficient engines and machinery then in use. The city council thus had in view the value of the inadequate engines and machinery then in use, and the value of the new engines and machines; the cost of the latter being made known to them by the plans and estimates submitted by the water board. The better interpretation of the ordinance of 1885 is, therefore, that the exchange authorized to be made was expected to be accomplished without resorting to an advertisement for proposals.

This conclusion has been reached independently of the fact that some years before the present transaction the city paid the sum of $20,000 for an engine obtained by the water board from Henry R. Worthington, by contract, without advertising for proposals. A single instance of that kind, showing a departure from the ordinance regulating the subject of contracts and purchases by the water board, cannot be allowed to operate as a repeal of that part of the ordinance requiring an advertisement for proposals where the board makes a contract or purchase involving an expenditure of more than $10,000. We place our decision in the present case upon what we regard the fair interpretation of the ordinance under which the exchange in question was made.

It was agreed that if, on the facts stated by the parties, the city was liable, judgment should be entered in favor of the plaintiffs for the sum of $35,000, with interest from April 15, 1889. We are of opinion the city is liable upon the contract made by the water board.

The judgment is reversed, and the cause is remanded, with directions to enter judgment in favor of the plaintiffs accordingly.