Statement of the Case. Statutes was still in force, and in view of the provision therein made for suits against the collector. We are of opinion that this action would not lie at common law, the money being required by section 3010 to be paid into the Treasury; that it was not authorized by statute; and that the question of jurisdiction certified was properly answered by the Circuit Court in the negative. Judgment affirmed. MR. JUSTICE JACKSON was absent when this case was submitted, and took no part in its decision. WORTHINGTON v. BOSTON. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS. No. 312. Argued March 20, 21, 1894. - Decided April 9, 1894. The Mayor and City Council of Boston had authority, in 1885, to authorize the City Water Board, without previous advertisement, to contract for the exchange of such pumping engines and machinery as were inadiequate or of insufficient capacity for those of the capacity required by plans and estimates for a high-service extension previously made, and to direct that the expense of such exchange should be charged to the appropriation for high-service extension; and the contract made by the Water Board, in pursuance of such authority, and without previous advertising, is binding on the city. THE plaintiffs in error, as surviving partners of a firm doing business under the name of Henry R. Worthington, brought this action upon a written agreement concluded, May 19, 1885, between that firm and the Boston Water Board-the latter assuming to act on behalf of the city of Boston. This agreement involved the expenditure of a large sum of money for pumping engines and machinery in connection. with the "high-service" extension of the water works of the city, and was made without an advertisement for proposals by bidders. Statement of the Case. The court below tried the case without a jury pursuant to a written stipulation of the parties, and, being of opinion that without such advertisement the Water Board had no authority to make the agreement, gave judgment in favor of the city. 41 Fed. Rep. 23. Whether the Water Board had such authority depends upon certain facts set forth in an agreed statement of the parties. These facts are as follows: The city of Boston previous to, and ever since, the year 1875 was authorized to take water from Lake Cochituate, Sudbury River, and Mystic Lake, to build and maintain aque ducts, dams, reservoirs, and to lay pipes, establish hydrants, and supply its inhabitants with water in such manner and by such agents, officers, and servants as the city council should from time to time direct; and previous to 1875 it had estab lished the Cochituate Water Board and the Mystic Water Board to exercise those powers, subject to the ordinances and orders of the city. By chapter 80 of the statutes of Massachusetts of 1875, it was provided: "The city council of the city of Boston may establish by ordinance a water board to be known as the Boston Water Board, consisting of three able and discreet persons to be appointed by the mayor, with the advice and consent of the city council, and to receive such compensation as the city council may from time to time determine. The said board may be empowered by said city council to exercise all or any of the powers conferred by the statutes of the Commonwealth upon the city of Boston, with reference to supplying said city with water, or of the Cochituate and Mystic Water Boards, and also to act as the agent of the city of Boston in doing any and all things which the city is now authorized to do in relation to the taking of lands, water rights, and other property, and the establishment and maintenance of works and appliances for supplying the city of Boston or other cities and towns with pure water, and the said Boston Water Board shall, so far as the city council of said city may by ordinance prescribe, succeed to all the powers and duties formerly vested in the Cochituate Water Board and Mystic Water Board." Statement of the Case. On the 22d day of March, 1876, the city council of Boston, with the approval of the mayor, passed an ordinance that was in force when the agreement in question was made, and which, among other things, provided: "There shall be a board to be known as the Boston Water Board and to consist of three members. Said board shall have and exercise all the powers so far as such powers can be legally delegated by the city council, which were granted to the city by or are held by the city under chapter one hundred and sixty-seven of the statutes of the Commonwealth of the year eighteen hundred and forty-six, chapter one hundred and seventy-seven of the said statutes of the year eighteen hundred and seventy-two, and by or under any and all statutes in addition to either of the before-mentioned chapters, subject, however, to the authority of the city council from time to time, by ordinances, orders, or resolutions, to instruct said board, and to change and limit their powers. Said board may, subject to the approval of the mayor, sell or lease such of the property connected with the water works as they deem expedient, and all necessary deeds and leases shall be executed by the mayor and countersigned by the chairman of said board. No contract or purchase which is estimated to involve an expenditure of more than ten thousand dollars, except a contract for the laying of pipe, shall be made by the said board until they have advertised, as hereinafter provided, for sealed proposals thereof. All proposals shall be publicly opened at the time and place designated in the advertisement, and the said board may reject any or all bids which are offered, and it shall be their duty to reject the bids of all irresponsible parties." For several years prior to 1884 the question of extending the high-service works of the Cochituate Water Department, which comprised a part of the city water works, was before the city council. In 1881, the Water Board submitted to the council the following estimate of the cost of such extension: "For engine buildings, wells, engine foundations, etc., $149,000; one engine, capacity 10,000,000 gallons, $75,000; one relief engine, capac Statement of the Case. ity 5,000,000 gallons, (based on using one of Mystic pumping engines,) $18,000; lands and reservoir, (No. 1,) capacity 15,000,000 gallons, $169,000; land damages for reservoir (No. 3) and pipe lines, $28,000; pipe mains, force, and supply, $237,000; add 10 per cent for superintendence, engineering, and contingencies, $67,600; total, $743,600." The Water Board, November 17, 1884, submitted to the council another estimate of the cost of such extension, as follows: "For engine buildings, wells, engine foundation, connection chamber, $142,000; one engine, capacity 10,000,000 gallons, $60,000; one relief engine, capacity 5,000,000 gallons, $25,000; land and reservoir, capacity 15,000,000 gallons, including gate chamber, $210,000; land damages for reservoir No. 3, $28,000; pipe mains, force and supply, $231,000; add 10 per cent, engineering and contingencies, $69,600; total, $765,600." On December 23, 1884, an order was duly passed by the city council, and approved by the mayor, to this effect: "Ordered, That the city treasurer be authorized to borrow, under the direction of the committee on finance, and at such a rate of interest as they shall determine, the sum of $766,000, which sum is hereby appropriated, and the Boston Water Board is authorized to expend the same for the extension of the high-service works of the Cochituate Water Department." On December 31, 1884, the City Engineer, Henry M. Wightman, addressed to the Water Board a letter, in which he said: "The board should determine the pumping engine it will use, as such determination is necessary before a plan of the pumping station can be made. I am of the opinion that the improved Worthington engine will prove the most advantageous for the city, and as a three-million-gallon engine of this type is running at the Worthington pump works in New York, it would be advisable for the board to examine this engine before any decision is made." The Water Board adopted plans and specifications for the proposed extension, requiring, among other things, two engines of the daily capacity of five million and ten million gallons, respectively, estimated by the board to cost from $85,000 to $93,000, and the discontinuance of the pumping station on Statement of the Case. Elmwood Street, at the Highlands, and the engines and machinery therein. And on the third day of April, 1885, it sent this communication to the city council: "The plans for the extension of high service, as detailed ex-City Engineer, Joseph P. Davis, and the late City Engineer, Henry M. Wightman, require the establishment of a new pumping station at Chestnut Hill of larger capacity than the present one at the Highlands, and the discontinuance of the latter. Mr. Wightman, after a careful examination of the matter, concluded that it would be advantageous for the city to exchange if possible the small engines now in use for the larger ones required in the extension of the high service, and so recommended to the board. We therefore askThat the Water Board be authorized to exchange such pumping engines and machinery as are inadequate or of insufficient capacity for those of the capacity required by the plans and estimates of the new high-service extension."" On April 20, 1885, the following order, prepared by the chairman of the Water Board, and which had duly passed both branches of the city council, was approved by the mayor: "Ordered, That the Water Board be authorized to exchange such pumping engines and machinery as are inadequate or of insufficient capacity for those of the capacity required by the plans and estimates of the new high-service extension, the expense of such exchange to be charged to the appropriation for high-service extension." On April 21, 1885, the Water Board visited New York and examined the improved or high-duty Worthington engine, and other engines in New York, Philadelphia, and Brooklyn, all of which they had done several times before subsequently to January 1, 1885, and on the previous visits had been accompanied by the City Engineer; and on April 24, 1885, received from the firm of Henry R. Worthington the following proposal, sent at the suggestion of the chairman of the Water Board in accordance with the recommendation of the City Engineer as above set forth: "We beg leave to submit the following proposal: For $106,575, will furnish and erect the pumps, etc., ready for continuous service. Whole to the satis |