Home COMMONWEALTH vs. EDWARD E. BROWN (and two companion cases [Note 1]).

391 Mass. 157

May 6, 1983 - February 14, 1984

Bristol County

Present: HENNESSEY, C.J., LIACOS, NOLAN, LYNCH, & O'CONNOR, JJ.

Defendants charged with conspiring to violate the competitive bidding requirements of G. L. c. 43, Section 28, with respect to a number of contracts for repair and resurfacing of existing roofs of a city's public schools were entitled to required findings of not guilty, inasmuch as contracts for repairs were not contracts for "construction work" subject to the competitive bidding requirements of Section 28 as in effect during the relevant periods. [158-163]

INDICTMENTS found and returned in the Superior Court Department on September 18, 1979.

The cases were tried before Byron, J.

After review was sought in the Appeals Court, the Supreme Judicial Court ordered direct appellate review on its own initiative.

Henry P. Sorett for Edward E. Brown.

Douglas B. Weilding for Walter Geraghty.

Geoffrey Packard for Joseph Nardozza.

Patricia O. Ellis & Phillip L. Weiner, Assistant District Attorneys, for the Commonwealth.


O'CONNOR, J. The defendants were convicted by a jury of conspiring to violate the provisions of G. L. c. 43, Section 28, which prohibit the award of certain contracts by a city without competitive bids. The conspiracy was alleged in the indictments to have taken place between April, 1974, and August, 1979. Sentences were imposed. The defendants

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appealed. Execution of the sentences was stayed pending appeal. The defendants also appealed from the denial of several posttrial motions. We transferred the case to this court on our own motion. We hold that denial of the defendants' motions for required findings of not guilty, presented at the close of the Commonwealth's case and at the close of all the evidence, was error, and we reverse the convictions. The basis of our holding is that the contracts at issue were not subject to the competitive bidding requirements of G. L. c. 43, Section 28. In view of our holding it is unnecessary for us to consider numerous other issues presented by these appeals.

General Laws c. 43, Section 28, as amended through St. 1974, c. 199, Section 2, in effect throughout the periods relevant to these indictments, provided that "[n]o contract for construction work or for the purchase of equipment, supplies or materials, whether for repairs or original construction, the estimated cost of which amounts to two thousand dollars or more . . . shall be awarded unless [certain bidding procedures are followed] . . . . No bill or contract shall be split or divided for the purpose of evading any provision of this chapter." The jury could have found the following facts from the evidence most favorable to the Commonwealth. The defendant Brown was superintendent of public buildings for the city of Taunton during the period of the alleged conspiracy. The other defendants, as well as Frederick Randall and Richard Grassley, [Note 2] were roofers. Between April, 1974, and December, 1977, Brown awarded the defendant Nardozza at least fifty contracts to repair and resurface existing roofs of four Taunton public schools. There were no competitive bidding procedures. The work was done by Nardozza and Nardozza was paid for it, but the city's records showed that the contracts were awarded, and payments were made, to Randall, Grassley, and the defendant

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Geraghty. The amount invoiced for each job was under $2,000, and in almost every instance it was almost that much. Charges for equipment, supplies or materials were included in only four invoices and they totalled $653.50. From this evidence and from evidence of the nature of the work performed pursuant to the several contracts, the jury could have found that the defendants conspired to divide the roofing projects into small units in order to evade bidding requirements that they either thought had been imposed, or thought might have been imposed by G. L. c. 43, Section 28.

However, it was not enough for the Commonwealth to show that the defendants attempted to evade bidding procedures that they thought were required by G. L. c. 43, Section 28. The burden was on the Commonwealth to prove that the defendants combined for a purpose, or contemplated the use of a method, that was actually prohibited by G. L. c. 43, Section 28. See Commonwealth v. Bessette (No. 1), 351 Mass. 148 , 153-154 (1966); Commonwealth v. Bessette (No. 2), 351 Mass. 157 , 162 (1966). The Commonwealth, therefore, was required to prove that the contracts that were awarded were for "construction work or for the purchase of equipment, supplies or materials, whether for repairs or original construction, the estimated cost of which [amounted] to two thousand dollars or more" within the meaning of that language in the statute. There was no evidence that the contemplated contracts would provide for equipment, supplies, or materials, the total estimated cost of which was $2,000 or more, to be furnished to the city. This case, therefore, is unlike Datatrol, Inc. v. State Purchasing Agent, 379 Mass. 679 , 696 & n.14 (1980), in which we held that a contract for personal services was subject to the bidding requirements of G. L. c. 7, Section 22, because it was incident to a procurement of equipment for which bidding was required. We are confronted with the limited question whether "construction work," not defined in the statute, includes the repair and resurfacing of roofs on existing buildings. In answering that question, we are guided by the principle that criminal statutes must be strictly construed. Commonwealth

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v. Gagnon, 387 Mass. 567 , 569 (1982). Commonwealth v. Devlin, 366 Mass. 132 , 137 (1974).

If the Legislature intended the statutory phrase "whether for repairs or original construction" to refer to contracts for construction work as well as to contracts for the purchase of equipment, supplies, or materials, it would necessarily follow that the Legislature meant "construction work" to include repairs. However, if the phrase refers only to contracts for the purchase of equipment, supplies, or materials, it sheds no light on the meaning of "construction work" and we must look elsewhere for assistance in construing that term. We conclude that the modifying phrase refers only to contracts for the purchase of equipment, supplies, or materials. In doing so, we rely not only on the rule of strict construction of criminal statutes, but also on "the general rule of statutory as well as grammatical construction that a modifying clause is confined to the last antecedent unless there is something in the subject matter or dominant purpose which requires a different interpretation." Moulton v. Brookline Rent Control Bd., 385 Mass. 228 , 230-231 (1982), quoting Hopkins v. Hopkins, 287 Mass. 542 , 547 (1934). Druzik v. Board of Health of Haverhill, 324 Mass. 129 , 133 (1949). We are not satisfied that the subject matter or dominant purpose of G. L. c. 43, Section 28, requires that the modifying clause not be confined to the last antecedent in keeping with the general rule.

The Commonwealth argues that the statute's clear purpose requires that "construction work" be construed to include roof repair and resurfacing. The argument is that G. L. c. 43, Section 28, is but one of many competitive bidding statutes, all of which must be interpreted harmoniously to further a common purpose: establishing fair competition and obtaining the lowest available prices from responsible bidders for public projects. See Interstate Eng'g Corp. v. Fitchburg, 367 Mass. 751 , 757-758 (1975). The Commonwealth observes that competitive bidding on contracts for the repair of public buildings is no less relevant to these objectives than competitive bidding on original construction.

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Our attention is directed to several statutes, all of which were enacted substantially later than 1915, the year that G. L. c. 43, Section 28, was enacted. See St. 1915, c. 267, Section 28. For instance, G. L. c. 29, Section 8A, as appearing in St. 1980, c. 579, Section 52, requires competitive bidding on contracts with the Commonwealth for the construction, reconstruction, alterations, repair or development at public expense of any building, road, bridge or other physical property if the amount involved therein is one thousand dollars or over" (emphasis added). The emphasized language has been part of Section 8A since its enactment in 1939. see St. 1939, c. 427. General Laws c. 30, Section 39M (a), as amended through St. 1977, c. 970, Section 1, provides: "Every contract for the construction, reconstruction, alteration, remodeling or repair of any public work, or for the purchase of any material . . . by the Commonwealth, or political subdivision thereof, or by any county, city, town, district, or housing authority, and estimated by the awarding authority to cost more than five thousand dollars in the case of the commonwealth, or political subdivision thereof, and more than two thousand dollars in the case of any other such awarding authority, shall be awarded [only pursuant to specified bidding procedures]." General Laws c. 149, Section 44A, as amended by St. 1967, c. 899, required bidding on certain contracts "for the construction, reconstruction, alteration, remodeling, repair or demolition of any public building." General Laws c. 149, Section 44A, as appearing in St. 1980, c. 579, Section 55, requires competitive bidding on "[e]very contract for the construction, reconstruction, installation, demolition, maintenance or repair of any building by a public agency estimated to cost more than five thousand dollars." The Commonwealth reasons that these statutes, focusing on reconstruction, alteration, repair, remodeling, and the like, in addition to construction, manifest a legislative policy to require competitive bidding on public contracts for a broad range of activities which includes the repair and resurfacing of roofs of public schools. The Commonwealth concludes that the term "construction work" in G. L. c. 43, Section 28, must be construed

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to include roof repairs and resurfacing in order to effectuate that policy.

We do not agree that the intent of the Legislature in 1915, in enacting G. L. c. 43, Section 28, is revealed by statutes enacted many years later when the range of legislative concern may well have expanded to include contracts that were not the concern of the earlier Legislature. If the more recent statutes, relied on by the Commonwealth, are indicative of anything relevant to our inquiry, it is that the meaning of the terms "construction" and "construction work" is imprecise, and that a Legislature may give those terms a narrow meaning that excludes repairs and roof resurfacing. Since a statute should be interpreted so as to give meaning to all the words when possible, Commonwealth v. Wood's Hole, Martha's Vineyard & Nantucket S.S. Auth., 352 Mass. 617 , 618 (1967), the word "construction" in the later statutes must be construed not to include such words as "reconstruction," "alteration," "repair," or "remodeling." These words would be superfluous if they were included within the meaning of "construction" in those statutes.

The Commonwealth's best argument may be that if the word "construction" in G. L. c. 43, Section 28, is interpreted to mean only original construction work, the word "original" in the phrase "whether for repairs or original construction" becomes superfluous. This, the Commonwealth contends, suggests that the word "construction" was intended to be construed broadly. The difficulty with the Commonwealth's position is that "[i]t is a fundamental tenet of due process that `[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.'" United States v. Batchelder, 442 U.S. 114, 123 (1979), quoting Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939). See Commonwealth v. Gagnon, supra at 569. Even though resort to a rule in aid of statutory construction may give some support to an interpretation of the term "construction work" that is broader than "original construction," the statute does not give clear warning that it applies to the repair and resurfacing of roofs on existing buildings. Dictionary

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definitions confirm this conclusion. Webster's Third New Int'l Dictionary at 489 (1961) defines "construction" as "the act of putting parts together to form a complete integrated object: [synonymous with] fabrication." Black's Law Dictionary at 283 (5th ed. 1979) states that "construction" means "[t]he creation of something new, as distinguished from the repair or improvement of something already existing."

Throughout the period covered by the indictments, G. L. c. 43, Section 28, did not make criminal or unlawful the award by a city, or the splitting, of contracts to repair or resurface the roofs of existing buildings without competitive bidding. [Note 3] The evidence, therefore, did not warrant findings that the defendants conspired to violate the provisions of G. L. c. 43, Section 28.

The judgments as to all defendants are reversed, the verdicts set aside, and the indictments dismissed.

So ordered.


FOOTNOTES

[Note 1] One is against Joseph Nardozza and the other is against Walter Geraghty.

[Note 2] Frederick Randall was indicted as a coconspirator and his trial was joined with the trials of the defendants herein. During the trial, the judge declared a mistrial as to Randall because of ill health. Richard Grassley was named in all the indictments as an unindicted coconspirator.

[Note 3] General Laws c. 43, Section 28, was amended by St. 1980, c. 579, Section 54. This decision is limited to the period covered by the indictments.