Smith v. . Syracuse Improvement Company

*488 Parker, Ch. J. The plaintiff as a taxpayer commenced this action upon the theory that the common council of Syracuse had not awarded the contract to the lowest bidder, and this necessarily was so, if the two proceedings referred to were in fact orte; for while the bid of the defendant, the Syracuse Improvement Company, was the lowest for asphalt sheet pavement, it was not as low as the bids for paving with vitrified paving brick. The two proceedings, while instituted by the same persons, were commenced at different times and were treated by the common council as proceedings bearing no relation whatever to each other down to the time when the bids for paving the street were received, and then it happened that the bids under each proceeding were received on the same day. The trial judge reached the conclusion that the proceeding instituted for the purpose of paving a portion of Liberty street with “ vitrified paving brick, manufactured by the Hew York Brick & Paving Company, of Syracuse, H. Y.,” was void, in that it did not permit of free competition as contemplated by the terms of the charter. The reasoning is that while competition was to a certain extent allowed in this case, namely, as to the work required in paving the street, it was not allowed to the extend; required by the statute, which contemplates a full and free competition in all things, inasmuch as competition in the price of paving brick was sought to be prevented. This proceeding contemplated that this should be accomplished by requiring that the street be paved with “ vitrified paving brick manufactured by the Hew York Brick & Paving Company, of Syracuse, H. Y.,” thus necessarily allowing that corporation to practically fix its own price for brick to be used in the work, and this, too, in the presence of the well-known fact that there were many corporations in the country engaged in the manufacture of vitrified paving brick as suitable for the work as was that of the Hew York Brick & Paving Company. Having reached the conclusion that the proceeding to pave with brick was void ab initia and that all bids thereunder were invalid, the court held that the bid of *489 the Syracuse Improvement Company, was the lowest bid for paving the street, and directed the entry of a judgment dismissing the complaint. In the Appellate Division, as appears from the opinion, it was the view of the court, first, that the proceeding to pave the street with vitrified brick was not void, and, second, that the proceeding to pave with asphalt sheet pavement was not initiated by competent petitioners, and, hence, that the action of the common council based thereon was without jurisdiction and void, and a reversal of the judgment was ordered. It appears, however, from the order of reversal that it was not made upon the facts, but upon the law, and, therefore, upon this review the findings of fact made at the Trial Term are conclusive, so while it is asserted in the opinion of the Appellate Division that the proposed contract did not, under the evidence in this record, prevent or. tend t'a prevent, or to restrict fair competition, we have but to turn to the findings of fact, which have been undisturbed, to learn what the court is conclusively bound to regard as the real situation, and there we are told that the brick called for by the petition are not manufactured by any person or corporation other than the Hew York Brick & Paving Company; that the company has a complete monopoly upon the disposal of such brick and can refuse to sell, dictate terms and command unfair prices for the same of any person or corporation desiring to bid for the laying of said pavement, of the construction of said local improvements; and, further, that vitrified brick for paving purposes is a common article of manufacture and sale, and there are parties or corporations other than the said Hew York Brick & Paving Company who manufacture and sell vitrified brick for paving purposes equal in quality to the best paving brick made by the said Hew York Brick & Paving Company. This finding fully justifies the conclusion of law found at the Trial Term that the petition asking for the pavement of a portion of said street with vitrified paving brick manufactured by the Hew York Brick & Paving Company, of Syracuse, H. Y., and all the proceedings had thereon by the common *490 council were in violation of the provisions of the charter of the city of Syracuse requiring that work to be done by contract should be let to the lowest bidder, and were, therefore, illegal and void. This brings us to the second ground of difference between the Appellate Division and trial term, which consists in the contention of the former that the proceeding ■ to pave the street with asphalt sheet pavement was not initiated by competent petitioners and that, therefore, the action of the common council was without jurisdiction and void. Section 141 of the charter of the city of Syracuse (Chap. 26, Laws of 1885, as amended by chap. 449, Laws of 1888; chap. 415, Laws of 1889, and chap. 531, Laws of' 1893). provides among other things that “ no person signing a petition, request . or consent shall be counted or considered upon a remonstrance against the improvement petitioned for, requested or consented to by him; nor be permitted to withdraw his name from such petition, or revoke such request or consent, within three months after the presentation of such petition, request or consent to the common council.” It was said that the petition in favor of paving with vitrified brick was first signed, then the petition for paving with asphalt sheet paving was signed by the same parties within three months after the presentation of the first petition, and hence that the signing of the latter petition was in contravention of the provisions of the statute quoted. It is conceded on this argument that the learned judge of the Appellate Division was mistaken in assuming the fact to be established that the petition for paving with brick was first signed in point of time by the petitioners, that the evidence does not show which petition was signed first, and the findings, which must of course be our guide, are silent upon the subject. It is quite clear therefore, that the facts upon which the Appellate Division rested its conclusion that the petition for asphalt sheet pavement was not signed by competent petitioners, are wanting, and their absence robs the result reached of its foundation. But if we assume, for the. purposes of the argument, that the petition *491 for paving the street with asphalt sheet pavement was signed after the same petitioners had signed the petition for paving with brick, and further assume that the statute will admit of such a construction as prohibits petitioners on one petition from signing another petition relating generally to the same subject within three months, nevertheless the signing of the petition to pave with asphalt sheet pavement was not illegal, because the first petition was illegal and void. Through it the petitioners prayed the common council to take such action as was condemned by statute, and, therefore, the petition was void ah initia. A void petition is no petition, and, therefore, when the petition, praying that the street be paved with asphalt sheet pavement, was presented to the petitioners for signature, there was no petition in existence bearing their names, or affecting in anywise the question of paving Liberty street, and they were, consequently, at liberty to petition the common council in relation thereto. Our conclusion, therefore, is, that the trial court was right in holding that the first petition, and all proceedings had thereon, were void; that the second proceéding was initiated by competent petitioners and was regularly conducted to the end, and that as the defendant, the Syracuse Improvement Company, was the lowest bidder thereunder, the court had no right to restrain the proper municipal authorities of the city of Syracuse from entering into a contract with the defendant company in accordance with the award made to it by the resolution of the common council. The order of the Appellate Division should be reversed and the judgment of the. Special Term affirmed, with costs. All concur, except Bartlett, J., dissenting, and Vann, J., not sitting. Order reversed, etc.