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November 17, 1977


Suffolk. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on April 9, 1975. The case was heard by Wilkins, J., on a master's report.

Hennessey, C.j., Quirico, Kaplan, Liacos, & Abrams, JJ.


School and School Committee. Boston. Municipal Corporations, Contracts. Contract, With municipality. Words, "Department."

The opinion of the court was delivered by: Liacos

Failure of a bus company, awarded a three-year contract to transport students by the school committee of Boston, to prove that the mayor had approved the contract as required by St. 1890, c. 418, § 6, as amended, necessitated entry of judgment for him in a civil action by the company [695-697]; a Conclusion that it was "unreasonable" for the mayor to withhold approval lacked support in the law [697-698]; and without merit was a contention that busing necessary to comply with the racial imbalance law and Federal court desegregation orders validated the contract without the mayor's approval [698-699].

The plaintiff bus company, Urban Transport, Inc. (Urban), brought this action in the nature of mandamus in the county court seeking an order to compel the mayor and other Boston officials to approve and execute a three-year school bus transportation contract, and also seeking damages. A special master and commissioner heard the action. The master recommended that the mayor be ordered to approve the contract for the three-year period and that damages be awarded to Urban in the sum of $64,906.40. The single Justice confirmed the master's subsidiary findings of fact, but entered judgment for the defendant on the ground that no three-year contract existed between the parties. *fn1 From that judgment Urban has appealed to this court.

The master found the following facts: *fn2 In October of 1974, the business manager of the school department of transportation and safety, pursuant to St. 1909, c. 486, § 30, as amended, published an invitation for bids for the furnishing of transportation to students in the vocational education, occupational resource center, and bilingual programs. Although Urban submitted its bid proposal a few minutes past the twelve o'clock deadline, the school committee voted to award the three-year contract to Urban, the lowest bidder. Prior to acting on the contract, the mayor solicited the opinion of the Finance Commission of Boston (commission) on the advisability of authorizing the execution of this contract with Urban. *fn3 The commission, relying on many inaccurate findings and Conclusions, recommended against entering into a contract with Urban. The report of the commission alleged various irregularities and violations of law in regard to Urban's bid and the school committee vote. The commission recommended further investigation by law enforcement authorities. The district attorney for Suffolk County commenced such a criminal investigation. The mayor refused to approve the contract because of this investigation. Urban commenced bus transportation services on October 29, 1974, but the mayor continued to refuse to approve the contract. Thus, this suit was initiated on April 9, 1975.

The second master *fn4 also found that the mayor's refusal to grant his approval to the three-year contract was "unreasonable." Although Urban contended before the master that the mayor's approval pursuant to the interlocutory order of the single Justice constituted approval for a three-year contract, the master stated that the approval was for a one-year contract. The master recommended that the school committee be ordered to assign Urban bus routes for the school year 1976-1977 and that damages should be awarded to Urban based on lost profits for the school year 1975-1976. *fn5

We affirm the judgment for the defendant entered by the single Justice.

The pertinent statute here, "An Act concerning certain contracts entered into on behalf of the city of Boston and the county of Suffolk," St. 1890, c. 418, § 6, as amended through St. 1955, c. 60, § 1, provides: "All contracts made by any department of the city of Boston . . . shall, when the amount involved is two thousand dollars or more, . . . be in writing; and no such contract shall be deemed to have been made or executed until the approval of the mayor of said city has been affixed thereto in writing." *fn6

A contract with the city is not formed until the necessary statutory requirements are fulfilled. *fn7 Central Tow Co. v. Boston, 371 Mass. 341, 344 (1976). As we stated in Richard D. Kimball Co. v. Medford, 340 Mass. 727, 729 (1960): "It is familiar law that one dealing with a city or town cannot recover if statutory requirements such as are contained in the defendant's charter have not been observed." See, e.g., Adalian Bros. v. Boston, 323 Mass. 629, 632 (1949); Cook v. Overseers of the Pub. Welfare in Boston, 303 Mass. 544, 547 (1939); Fluet v. McCabe, 299 Mass. 173, 178 (1938); Continental Constr. Co. v. Lawrence, 297 Mass. 513, 516 (1937); Fiske v. Worcester, 219 Mass. 428, 430 (1914); Wheaton Bldg. & Lumber Co. v. Boston, 204 Mass. 218, 226 (1910).

Urban contends that the mayor approved the contract for the entire three-year period. Those who seek to contract with a municipality bear the burden of proving compliance with the statutory requirements in the city charter. Richard D. Kimball Co. v. Medford, supra at 729. Dos Santos v. Peabody, 327 Mass. 519, 520-521 (1951). Continental Constr. Co. v. Lawrence, supra at 516. The plaintiff here has not sustained its burden. The master found that the mayor's approval was limited to a one-year contract. That the master used the words "I believe" rather than the phrase "I find" does not make the finding a matter of conjecture, as Urban argues, especially since other portions of the report supported this finding. Furthermore, with the exception of one paragraph dealing with damages, Urban moved to confirm the complete report. McCray v. Weinberg, 4 Mass. App. Ct. 13, 17 (1976).

Urban argues in the alternative that the mayor cannot unreasonably withhold his approval of a contract validly awarded by the school committee. The master found the mayor's refusal to approve the three-year contract not in bad faith but unreasonable. He based this Conclusion on the facts (1) that the school committee awarded the contract to Urban, and (2) that Urban then performed satisfactorily during the 1974-1975 school year.

Nothing in St. 1890, c. 418, ยง 6, suggests, however, that the mayor's approval is a mere ministerial act to be performed whenever the school committee votes for a contract. Nor does this provision limit the factors which the mayor may consider in deciding whether to approve or not. See Eastern Mass. St. Ry. v. Mayor of Fall River, 308 Mass. 232, 235 (1941). The purpose of such legislative enactments is to limit the power of public officials in making contracts, Dyer v. Boston, 272 Mass. 265, 274 (1930), so as to unify the control of the city's commercial transactions, see School Comm. of Gloucester v. Gloucester, 324 Mass. 209, 218 (1949), and guard against waste by departments in the government, Singarella v. Boston, 342 Mass. 385, 388 (1961). To accomplish this purpose, the mayor must be able to exercise his "practical wisdom in the administration of the affairs of the city." McLean v. Mayor ...

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