Worcester morning daily spy. (Worcester, Mass.) 1888-1898, 1898-01-25
SOLICITORS OPINION.
Members of the Municipal Boards Must
Not Contract With the City.

City Solicitor Arthur P Rugg pre-
scented a printed pamphlet containing
the official opinions he has given during
his term of Office, The only one that
has not been made public is that which
is given in response to the following in
quiry of the city council:
ITO what extent are members of the
city council or members Of any munich
pal board prohibited from furnishing
labor teams and supplies for the city?"
The gist of his opinion is in the sum
ming up at the end, where he says:
81 am of opinion that every member
of all the municipal boards Of the city
Of Worcester is prohibited from furnish
ing labor, teams and supplies to the city
under any contract made by the board
or by authority Of the board of which
he is a member, and I am further of
opinion that all members Of the city
council of the city OF Worcester are pro-
hibited from furnishing labor teams
and supplies to the city under any con-
tract made by virtue Of authority de-
rived from any act of the city council"
The opinion covers nine.closely-print-
ed pages and is full of references to
cases which and decisions which bear
upon the point upon which the solicit
| ors opinion Is asked. The following
extracts give an idea of the process of
| reasoning by which the solicitor arrived
at his conclusions:
Giving fual effect to the word "respec-
| lively" contained in section 70 quoted
! above, / am Of opinion that the section
/ has the same meaning as the statute OF
| 1876 and that no member Of the city ccoun-
! ell or of a municipal board is prohibited
\ from contracting with the city unless the
! contract be one which the board or body
/ Of which he Is member either makes dl7
rectly or authorizes the making of, and
| that such member has no right legally to
contract with the city IL the contract is
made by the board or body of which he is
a member, or by virtue of authority de-
rived therefrom. For example. do not
think that a member of the school COM
nlittee of the city of Worcester Is pro-
hibited by this statute or rendered liable
to any penalty If he makes a contract with
the sewer department. So member OF the
board of overseers of the poor or trustee
of the city hospital, or Of any other of the
municipal boards, constituting that word
strictly, other than the city council itself,
is at liberty to contract freely with the
city through officers disconnected. with
and not deriving authority from the board
Of which he happens to be a member, On
the other hand, think 1t Is perfectly clear
that no member Of any municipal board
can be personally interested, either direct
ly or indirectly, In a contract which is
made In behalf of the city by that board
or by any person or persons deriving au-
thority from that board.
1t is probable that the mischief intended
to be prevented was that of having the
city officer in his official capacity pass
upon bills or upon the terms OF a contract
Of which he personally and in a private
capacity had a pecuniary interest.
1t is quite likely that, should the cues
ton ever arise, our court would hold that
the contracts described In the. statute
above quoted are void and not enforceable
against the city entirely apart from the
terms of this statute. Such seems to be
well established as the common law of
England and Canada, and Of several
with reference to contracts made by
members of the city council with the city,
into account than those heretofore indi-
Gated. BY sec. Is Of the city charter, c.
a. laws Of 1893 1t is provided that-"Nei-
Their the city council nor either branch
thereof, shall directly or indirectly take
part in the employment of labor, the ex-
penditure Of public money, the purchase
Of materials or supplies. the construction
alteration or repair OF any public works
or other property, or in the care, custody
or management Of the same, or in general
istrative business of the city, except as
herein required in providing for the APP
pointment and removal Of subordinate
officers and assistants. and as may be
and incidental expenses Of the city coun-
Gil or either branch thereof, nor shall they
or either OF them take part in the making
Of contracts, except as may hereafter be
otherwise provided by ordinance"
No ordinances have been passed under
the last clause of this section, SO that in
general the participation of members of
the city council in making contracts In
any way is prohibited by the charter Con-
STRUNG this section of the charter in con-
nection with the penal statute above
quoted, members of the Worcester city
council are prohibited from making con-
tracts with the city if such contract is
made "by authority derived therefrom,"
that is from the city council as they are
prohibited by the charter in addition to
the prohibition Of the penal statute from
making such contracts directly.
1t remains to consider the word Con
tract as used In the statute above quoted.
I can find nothing within the terms Of the
upon the subject to indicate that the word
its ordinary legal meaning. In its usual
significance, 1t includes every agreement
or promise enforceable by law. 1t seems to
me clear that the furnishing OF labor
teams, supplies, and work for any of the
city departments with an expectation of
getting compensation therefor, is a CON
tract within the terms Of the statute
whether the price is agreed upon before
hand or not. The furnishing of labor
teams or supplies without any prearrange-
ment as to the price, but with an under
standing that a recompense is to be made
therefor, raises an implied contract that
q reasonable price will be paid. / am of
opinion that such an implied contract is
as much within the terms Of the statute
we are considering as would be an agree
ment executed with all the formaiities Of
a written document.