People Ex Rel. Belden v. Contracting Board

Emott, J. The Constitution of this State (article 7, § 3), as amended in 1854, declares that “all contracts for work or materials on any canal shall be made with the person who shall offer to do .or provide the same at the lowest price, with adequate security for their performance.” The act of 1857 (vol. 1, p. 214) provides that the contracting board “ shall have power, and it shall be their duty to let by contract, under such regulations as said board shall prescribe, to the lowest bidder or bidders, who will give adequate security for the performance of the contract,” the repairs of any completed section of the canal. Under this law, the contracting board advertised for proposals to keep the Cayuga and Seneca canal in repair for four years and a half. This notice indicated the form and character of the. security, which the board would consider adequate, that is, it stated that every proposal must be accompanied by a certificate of deposit in some bank in good credit; that four thousand dollars in cash had been deposited therein to the credit of the auditor, which would be retained as *381 security for the- performance of the contract. The relator made a proposal which was somewhat lower in price than that of any other person, but it was not accepted. A contract was made with one Case, who seems to have been the next highest bidder. The relator delivered with his proposal a certificate that he had deposited in the Salt Springs Bank of Syracuse four thousand dollars, payable to the order of IT. S. Benton, auditor, but the certificate did not state in so many words that he had deposited such amount in cash. Case, whose bid was accepted, delivered a similar certificate, containing, however, the words “ in cash." It is to be inferred, although it is not distinctly stated that this difference in the form or phraseology of the certificate was the reason assigned for rejecting the' relator’s bid, and accepting a higher one. I confess I should be unable to justify such a decision, and I can hardly suppose that it was the true and only ground of the action of the board. Yet I think the Supreme Court ought not to have compelled the board, by mandamus, to reverse their action, or to make a contract with the relator, after they had already made another contract with another person. The powers conferred upon the board necessarily involved and implied an exercise of discretion, although it seems exceedingly clear what decision their duty required them to make in this case. But they are to determine who is the lowest bidder, and what is adequate security; or if the amount and character of the security required is fixed by general regulation, then the contracting board are to decide whether the security offered in any given case conforms to the regulations. The principle is well settled, that whenever the act requires the exercise of discretion, this remedy will not lie. There must be a clear legal right not merely to a decision in respect to the thing sought, but to the thing itself. (People, ex rel. Lynch, v. Mayor of New York, 25 Wend., 680, 686; 19 Johns., 259; Reeside v. Walker, 11 How. U. S., 272.) The right in the case before us seems exceedingly plain, but it is after all' only a right to a correct decision. The relator has no contract, no right *382 to any specific act free from all discretion in the contracting board. If we may interfere here, we may do so whenever the contracting board decides incorrectly as to the respective amounts of proposals, or the character of securities. If the case were clearer to my mind than it is, in favor of the jurisdiction to grant a mandamus, I should still feel bound to rpthhold it, and that, although the relator should have no other remedy, which I, by no means, admit. The writ of mandamus is to some extent, at least, in the discretion of the court to grant or refuse; especially where, as in this case, no property of the relator has been taken or affected, and his claims rests altogether upon the interests of the State to have its work done by the lowest bidder, and not upon a legal right on his part. (People v. Canal Board, 13 Barb., 450, and cases cited.) The only legal right of the relator in such a case, if he could have any, would be to damages for refusing him the contract. But it' appears in this case that the contracting board have made a contract with another person, one Case,already mentioned, and that he is engaged in the work. This individual would certainly be entitled to compensation for his work; and the only result of ordering a second contract for the same work, would be to subject the State to the payment of double compensation. I should not be inclined to issue a writ which would produce such a result, simply to correct a decision of these officers, even though flagrantly improper. There must, after all, be some discretion left to public officers, and a power to do wrong as well as right. The courts cannot correct all the evils incident to the administration of government under an elective system, especially where the judiciary itself is elective. The judgment of the Supreme Court should be reversed, and judgment ordered for the defendants. Denio, Ch. J., Davies, Wright, Balcom and Marvin, Js., were also for reversal—Denio, Ch. J., and Balcom, J., on the ground, among others, that the board, having executed a contract, could not execute another unless the first were abso *383 lately void; and they thought it good for the purpose of giving the relator his action against the members of the board.