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HomeMy WebLinkAbout1923-03-1324 MEETIEG, MARCH 13, 1923. ' All Members Present. Mr. Robert P. Clapp came before the Board in regard to taking the edges off the grace plot around Depot Park plot so that the line of the grace will coincide with the line of the plot bought by the town. He stated that it would coat approxi- mately $500 to put this into shape, that is to widen the street out and put in a privet hedge. Mr. Clapp stated that he could get that amount of money to fix the plot up if the Board agreed that it should be done. The Board agreed to have Mr. Harrison get figures.on the cost of doing this work. A pedler's application to peddle vegetables in Lexington was signed for Qiriaco Cataldo of 173 Rindge Ave. 11r, Robert L. Ryder came before the Board in reference to the claim of the Breck-Robinson Eureery Company for' damage to their property by the installation of the sewer. They claim the loss of a number of shrubs and bulbs to the amount of $8000. After considerable consultations they agreed to settle for $5000 and the right to enter the seater and continue to use the newer without ' charge, Mr. Ryder explained that he had J. 'Woodward Manning of Reading, Mass. an expert on landscape gardening to give an estimate of the lose. Mr. -Ryder turned over correspondence giving Mr. Man- nings figures. There appeared to be a discrepancy in the figures presented by Mr. Manning as to the number of shrubs, and Mr. Ryder after taking the matter up with Mr. Robinson said he was inclined to believe Mr. Robinson as it finally appeared that Mr, Manning obtained his information from the foreman that six hundred shrubs were destroyed, while Mr. Robinson stated that there were six thousand and 5400 of those were destroyed leaving a balance of 600. Mr. Ryder was in- clined to believe that'Mr. Yanning misunderstood the foreman. The damages were classed as follows: Bulbs and shrubs $2669 Easement & Land Damage 2500 Damage to drainage system. 1000 Damage to road and love of use. 500 Total $6669. Mr. Ryder explained to the Board that Mr. Robinson wanted the Sewer Commissioners to lay the sewer in another section of the property along the railroad, and that he got figures to show that his suggested location was as good as the one suggested by the Com- missionere, but for some reason the Commissioners chose to place ' the dewer where they did. Mr. Moulton stated that he would like another week to con- sider the best way of settling the case. Mr. Ryder also informed the Board that his resignation was in orderg and asked that the Board accept the same. In regard to the cases he has pending he stated that he would be glad to act as Special Counsel to the new Town Counsel if the Board so desired, but he thought all of his cased were ' ! in order to be turned over to another Counsel. The Board voted to accept Mr. Ryder's resignation. The Board also discussed the appointment of another Counsel to succeed Mr. Ryder. Mr. Neil McIntosh came before the Board to get the tentative approval of the Board on plan of land on Middle and spring Streets. This tract of land Mr. McIntosh is to develop comprises the Grassland Stock Farm. Letter was received from the Planning Board giving their re- commendation: 1, The streets designated "A", "B" and "D" are approved as shown by plan. 2. The street designated "E" is eliminated by reason of too steep a grade. 3. The Board, however, is willing to consider the location of a street with a reasonable gradient whereby the southerly portion of the petitioner's premises may be developed. 4. The street "C" is altered as shown by plan on condition that the petitioner execute a release giving the Town the legal right at any time to install a system of searers and storm drains in said street fbr its full length. 5. The petitioner to present to the Board a statement in which he agreed to deed to the town a strip of land for highway purposes on the westerly side of Spring Street, extending from the intersection of Spring and Middle Streets to land of Fairbanks, so that Spring Street may be widened to a width of not leas than 40 feet; contingent, however, on :Lr. Fairbanks agreeing to re- lease a similar amount of land between land of Mr. McIntosh and Shade Streete. ac 6. Final details as to the location and grades of the several streets are to meet with the approval of the Town Engineer, The Board agreed to approve the plans for Mr. McIntosh when they are presented in detail, and also when he agreed to the propositions presented by the Planning Board. George A. Varner and Leonard K. Dunham were appointed as Inspectors .of Slaughtering. Florence U. Boyd was appointed as Clerk of the Fater and Sewer Dept. The following Special Police were appointed: Alex Ohleon Emil J. Kash Charles M. Bl4e Frank. E. Clark Arthur R. Oliver Bion C. Merry Walter F. h ellman Edward W. Taylor Edward J. Mogan John G. Fitzgerald George E. Fay Michael A. Pero ' Jay 0. Richards Mark Dodd Thomas F. Fardy William P. Fright Thomas F. Griffin Charles A. Manley Dennis H. Collins Henry W. Preston John J. Garrity (Park) William S. Scamman Frederick J. Spencer John J. Kelley 26 Other unfinished appointments were discussed, but none were �. made. '"z) Notification of the expiration of policy BP 223317 on Highway Tractor, $10,000 liability expiring April 21st was discussed. It is believed that this insurance was not needed. 11r. Harrison was requested to find out if there was need for this policy. A first class Agent's License was granted to the Lexington Centre Garage, Wilson Bros. managers, Notice of a hearing on Snow Removal to be held at the State House on Thursdays March 22nd, 1923 was received, The Supt of Public Works was requested to attend the hearing. Mr. Joseph R. Cotton came before the Board and requested that the Legion men in the employ of the Town, being six in number, be given the afternoon off with pay so that they might partici- pate in the funeral service© of Charles G. gauffmann, civil war veteran. The Board voted to give leave to these men to be off duty as they were among the firing squad. The Supt. of Public Works requested permission to let the balance of the work of blasting on Oakmount Oircle out by con- tract possibly to hanscomb Construction Company. He stated that the work thus far had cost $900 and was only one third done; the Board therefor gave Mr. Harrison authority to let the work by contract. ' In connection wish the appointment of the Plumbing and Milk Inspectors, the Board was informed by the Supt. of Public ;Forks that Mr. Bain was getting considerable money from the Nater Dept, along with the positions of inspector, and suggested that a local man be appointed to the positions. Mr. Ezra F. Breed's name was suggeeted for the positions, and Yr. Harrison was requested to talk with Mr. Breed to see if he would do all the work being done by Mr. main now for $1200 pr. yr. The Supt, called attention to the fact that the bill for the Town Reports exceeded the contract price inasmuch as the book consisted of more pages than last years. In this connection it was euggeeted that the School Committee be requested to leave out the cute in the town report as they make considerable expense and mean nothing to the average person. The subject of bids for emal was discussed. It was euRgested that lair. Harrison write a letter to the School Department asking them to*advise the Board as to hot, much coal they needed for each school, so that the Board might ask for bide for all the coal for the town buildings. The Chairman signed the contract for the seven police call ' boxes to be installed for the Police Department. The telephone company is to install the phones for the boxes for the sum of $28.52 and the charge monthly for the Fervice will be $19. 27 In regard to the appointment of a Town Counsel, Mr. Moulton gave figures from 1903 to date, which showed the total cost of the lair department and the tremendous increase since the time of ' appointment of Counsel under the By -Law. Several names were suggested for the position of Town Counsel, such as Robert H. Holt, Edward C. :atone andobert F, Clapp, Mr. Moulton stated that he was in favor7anything that would reduce the cost of this department as he thought it was not necessary to emend eo much money on law. At Mr. Moulton's suggestion the appointment of a new counsel was left over until the neat meeting. The following legal opinion was received from the Town Counsel regarding by-laws as follows: March 9. 1923. "I have your letter of March 5, 1923 requesting my opinion on the following three questions. 1. Whether or not any votes passed under article 35 and 36 of the warrant for the annual town meeting would be legal. 2. Whether under articles in the current warrants any motion ratifying publication in the Lexington Minute- man approving the same or voting money therefore, can be properly and legally entertained. 3. Can the - town by vote re -appropriate or transfer the ' unexpended balance of the so-called By -Law appropriation for the publication in the Lexington Minute -man, also ghat is the scope of business that can be legally trans- acted under -ftrticle 35 and 36? First, let me say 'that Article 35 of the town warrant raises the question as to whether a motion can be legdly entertained to pay for the publication of a so-called set of By -Laws in the Lexington Minute -man. This can be subdivided into two questions: - 1. Can the town vote to pay the bill itself? 2. Can the town vote to reimburse the committee providing the said committee has rendered itself personally liable? In answer to the first question, I do not believe that the town can legally vote itself to pay this bill. It is elementary law that municipal expenditures must be for a municipal purpose. If the publication was illegal, it was of no effect. It is hard to see how this would constitute a municipal purpose or an ex- penditure either expressly or impliedly authorized by the Charter or General Laws. Waters vs Bonvouloir - 172 Mass. 286 ' Wheelock vs Lowell - 196 Mass. 220 Commercial Wharf Corp. vs. Bonton 208 Mass. 489 Nor will the fact that the town had the benefit, if it would be ruled that there be any benefit of such publication, charge it with a duty to pay for the same. An implied contract cannot arise under these circumstances against a muniei lit 28 Bartlett vs Lowell - 201 Mare. at 155. 'T7 If the town could not make nucha contract originally nor was it bound on an implied contract, it cannot ratify any action taken" I so as to bind itself. It is elementary law that one can only ratify what one car. originally authorize. Turning to the second question with regard to the reimbursement of the committeeg provided they have already, or are subsequently forced to pay for this publication themeelvee, there are two question here.. In the first place it is a general rule of law that where a public officer attempts to execute on behalf of a town an ultra vires contract, he is not personally bound by it. Lawrence ve Toothaker - 75 N.I:. 48 Sanborn ve Neil 4 - Minn. 46 I have been unable to find any cases where the quertion hae been dealt with as to whether an agent as opposed to a public officer would be personally liable on a contract made by him in excess of his authority. The basis for holding the agent who has attempted to contract for another and in doing so has exceeded his authority and one relying upon such misrepresentation may hold him in damages. The reason for the rule disappears where the party contracting with the agent is aware of the limitation in his authority and under the cir- cumstancee is not deceived. Jefte ve York - 10 Cushing at 396. I should think that under these circumstances, inasmuch as it has been adjudicated repeatedly that one contracting with the town is chargeable with the knowledge of the limitation of the authority contained in the statutes, that the parties contracting with the members of the By -Law Committee would be held to be charged with the knowledge of the statute and therefore could not enforce a contract which they knew war ultra vires from the beginning. Bartlett vs Lowell 201 Mass. 161 On the assumption that the members of the town committee were not personally liable. it seems to me that although the rule is un- doubtedg that a town may indemnify its agents or officers, who in good faith have incurred liability or sustained damages in con- nection with any matter which the town has a corporate interest to protect. Leonard ve kiddleton - 198 Mare. 221 I do not believe that the town can vote to reimburse them. The town cannot vote to reimburse them if they make a voluntary payment; that ie, one that they are under no obligation to make. It is just possible that the principle above alluded to with regard to the reimbursement of agents or officers is limited to cases where a mistake has been made in the exercise of their duties# leading to a breach of duty other than the execution of an unauthorized contract. ''here is one care in Massachusetts which seems never to have been cited since. namely 1 1 Keyes vs lestford - 17 Pickering 273, which holds this. However, I believe that the decisions in the later cases by implication over -ruled. it, Of course, if the ' town cannot vote money to pay for the publication in the Lexington Minute -man, the question as to whether any fund is available for such payment becomes immaterial, As to Article 36, it seems to me that the language of the warrant in probably broad enough to cover any vote under consideration of the new code of By -Laws as modified by the Attorney General and Mr. Bpyley, and for this purpose, undoubtedly, a motion could be entertained. ZYo vote to publish the By -Laws as they now stand without their having been passed anew by the toTm would be in order. Irf I am correct in my previous opinion to you respecting the pub. lieation of the proposed eet of By -Laws, no vote to publish in the Lexington kinute-man would be of any effect. Respectfully submitted, ROBED L. RYDMZ . Town Counsel, The Board acting under the above opinion did not approve the bill for publishing the By -Laws in the Minute -man, Burch 16, 1923, ' Mrs. Scamman and Bir. Burnham drew two Jurors, namely Louis L. Crone and Fred H. Dion, A true record, Attest: CLERK," 1 29