Home JOSEPH P. O'BRIEN vs. PAUL J. ANDREWS & others.

7 Mass. App. Ct. 902

April 10, 1979

The plaintiff, a resident of Woburn, brought this action to nullify the vote by which the defendant school committee appointed the defendant Andrews to the position of assistant superintendent. The plaintiff's contentions are that the appointment violated several provisions of the conflict of interest law, G. L. c. 268A, because the committee had established the position and fixed the salary for it while Andrews was himself a school committee member and because Andrews remained in legal effect a member of the committee at the time of and after his appointment due to the conditional nature (according to the plaintiff) of his resignation from the committee. The judge did not err in dismissing the complaint on the ground that the plaintiff lacked standing to bring the action. Although a private action may be maintained under G. L. c. 268A, Section 21(a), to enforce the provisions of the conflict of interest law, Everett Town Taxi, Inc. v. Aldermen of Everett, 366 Mass. 534, 535-538 (1974), the implication of that case (at 538-539) and of Graham v. McGrail, 370 Mass. 133, 136-137 (1976), is that the general interest of a private citizen having no relation to the alleged violation except that of being a resident of the town is insufficient to confer standing under Section 21(a). See Moskow v. Boston Redevelopment Authy., 349 Mass. 553, 571 (1965), cert. denied, 382 U.S. 983 (1966); Crall v. Leominster, 362 Mass. 95, 106-107 (1972); Charbonnier v. Amico, 367 Mass. 146, 151 n.10 (1975). See also Povey v. School Comm. of Medford, 333 Mass. 70, 71-72 (1955); Jacobson v. Parks & Recreation Commn. of Boston, 345 Mass. 641, 645 (1963), and cases cited.

Judgment affirmed.

Home PARIS PAPER BOX COMPANY & another [Note 1] vs. CITY OF BOSTON & others. [Note 2]

7 Mass. App. Ct. 902

April 11, 1979

1. The action was properly dismissed under the provisions of Mass.R.Civ.P. 56(b), 365 Mass. 824 (1974). a. If the effort was to recover money damages from the city of Boston (city) for breach of the (admittedly) oral contract alleged in the complaint, the action was barred by the provisions of St. 1890, c. 418, Section 6, as amended through St. 1955, c. 60, Section 1. See Wheaton Bldg. & Lumber Co. v. Boston, 204 Mass. 218, 222 (1910); Morse v. Boston, 253 Mass. 247, 251-252 (1925), S.C., 260 Mass. 255 (1927); Adalian Bros. v. Boston, 323 Mass. 629, 631-632 (1949); Singarella v. Boston, 342 Mass. 385, 387-389 (1961); Police Commr. of Boston v. Boston, 343 Mass. 480, 485 (1962); Central Tow Co. v. Boston, 371 Mass. 341, 344 n.9 (1976); Urban Transport, Inc. v. Mayor of Boston, 373 Mass. 693, 695-698 (1977). Compare United

Page 903

States Drainage & Irrigation Co. v. Medford, 225 Mass. 467, 471-472 (1917); McGovern v. Boston, 229 Mass. 394, 396-398 (1918); Richard D. Kimball Co. v. Medford, 340 Mass. 727, 729, 732 (1960). There is nothing to the contrary in Graphic Arts Finishers, Inc. v. Boston Redevelopment Authy., 357 Mass. 40, 41-43 (1970), in which the city was not the defendant and the case was necessarily decided with reference to statutory provisions comparable to those now found in G. L. c. 121B, Sections 4, 11 and 13. b. If the effort was to recover like damages from the city on a theory of tort (see Graphic Arts Finishers, Inc., supra at 42, 44), the answer is that all the events in question occurred long prior to August 16, 1977. See Whitney v. Worcester, 373 Mass. 208, 210 (1977); G. L. c. 258, Section 2, as appearing in St. 1978, c. 512, Section 15; St. 1978, c. 512, Section 16. c. If the effort was to secure recovery of benefits to which the plaintiffs claim to be entitled under the provisions of 42 U.S.C. Sections 4622(a) and 4630 (1970), it is clear that no such recovery can be had in proceedings like the present. See Jones v. District of Columbia Redevelopment Land Agency, 499 F.2d 502, 507-508 (D.C. Cir. 1974), cert. denied, 423 U.S. 937 (1975); Tullock v. State Hy. Commn., 507 F.2d 712, 715-717 (8th Cir. 1974); Rubin v. Department of Housing & Urban Dev., 347 F. Supp. 555, 558-559 (E.D. Pa. 1972); Barnhart v. Brinegar, 362 F. Supp. 464, 468-472 (W.D. Mo. 1973); Tenants & Owners in Opposition to Redevelopment v. Department of Housing & Urban Dev., 406 F. Supp. 1024, 1054 (N.D. Cal. 1973); Beaird-Poulan Div. of Emerson Elec. Co. v. Department of Hys., 441 F. Supp. 866, 869, 870, 872 (W.D. La. 1977); Annot., 33 A.L.R. Fed. 9, 16, 17-18, 21, 62-64, 67-70 (1977). d. It is clear from the papers reproduced in the record appendix that none of the other questions sought to be argued here was raised below. See John B. Deary, Inc. v. Crane, 4 Mass. App. Ct. 719, 724 (1976); Colman v. School Comm. of Swansea, 6 Mass. App. Ct. 912, 913 (1978). 2. The plaintiffs were not harmed if (contrary to the recital therein) the judgment was entered without an opportunity for them to be heard on the recommendation of the special master; it is obvious from the papers that all the plaintiffs' then contentions were briefed in connection with the judge's denial of the plaintiffs' motion to vacate the judgment. The order denying that motion and the judgment are affirmed.

So ordered.


[Note 1] Paris-Worcester Corporation.

[Note 2] Described in the complaint as "Public Facilities Commission of the City of Boston" and "Model City Administration of the City of Boston."