People Ex Rel. Smith v. Flagg

Comstock, J. The resolution of February 28, 1855, only called for a certain number of copies óf Ewen’s map of wharves and piers, with the “ alterations and additions ” to that date. The relator was directed by the street commissioner to comply with the requirements of that resolution; but finding that the alterations and additions were so numerous as to render necessary a new survey and map, he proceeded accordingly, and, having completed his work, furnished five hundred lithographed copies to the common council. These were accepted by them, and they passed, on the 26th of June, 1856, a resolution, that he be paid for his services the sum of $1,250. As the case is thus far stated, I see no reason to doubt that the relator is entitled j, to compensation for his labor and disbursements. If the common council had possessed no original authority to incur a debt of this kind, their recognition of the services and of the obligation to pay therefor would not have charged the corporation. (Halstead v. The Mayor, &c., 3, Comst., 430; Hodges v. City of Buffalo, 2 Denio, 110.) But no doubt is suggested that a surveyor could legally be employed on behalf *587 of the city, either to furnish copies of an original map, or to make new surveys and furnish a new map, exhibiting the streets, squares, wharves, piers, &c. The services, in this instance, went beyond the original employment, but they were subsequently r ecognized and agreed to be paid for in the resolution of June, 1856. This was equivalent to an original request, and created a just debt for some amount against the corporation. The amended charter of 1853 (Laws of 1853, 412, §12) requires that “all work to be done and supplies to be furnished for the corporation, involving an expenditure of more than two hundred and fifty dollars, shall be by contract, founded on sealed bids, or on proposals made in compliance with public notice for the full period of ten days; and all such contracts, when given, shall be given to the lowest bidder,, with adequate security.” It is claimed on the part of the appellant that the services performed by the relator should have been contracted for with the lowest bidder, pursuant to this requirement of the charter. The language of this provision is certainly somewhat broad; but I am quite well satisfied that it does not include services of the particular kind now in question. In a large sense, the term “work” may include all labor, whether mental or corporeal; but it has also a more restricted sense, which may confine it to the various kinds of manual labor, which may properly be the subject of general competition, and can be safely awarded to the lowest bidder. It would be an unreasonable and mischievous construction of the statute, to apply it to services which require in their proper performance scientific knowledge or professional skill. I do not believe that the services of a lawyer, of a physician, or those upon which the claim in the present case is founded, are embraced within the provision. There are, however, one or two other objections, which, it appears to me, should have been held fatal on the motion for a mandamus. By the amended charter of 1849 (Stat., *588 280, § 11), an executive department in the government of New-York city was constituted, denominated the “ Department of Finances.” It was made the duty of this department to settle and adjust all claims whatsoever, and all accounts whatsoever, in which the corporation is concerned as debtor or creditor. The comptroller was declared to be the chief officer of this department. By section 13 of the amended charter of 1853, an auditing bureau in the finance department was created, with an auditor of accounts as the chief officer. This bureau, it is declared, “ shall audit, revise, credit and settle all accounts in which the city is concerned as debtor or creditor.” Every claim against the corporation is to be certified from the auditing bureau to the comptroller, with the sum allowed, and the reasons for such allowance. In awarding the mandamus commanding the comptroller to draw his warrant in favor of the relator for the .sum claimed by him, no attention appears to have been given to these provisions of law. It has been observed that the resolution of the council, recognizing the relator’s services, was equivalent to an original request that he perform those services, and bound the corporation to pay for them. But if we give any effect to the clauses in the charter which have been quoted, the comptroller could not be compelled to draw his warrant until the claim was audited, according to law. The due employment of the relator by the common council, or their recognition of his services, gave him a just claim against the corporation, and a right to have his account audited in the manner provided. But it was not within the power of the council to determine that a particular sum was due to him for his labor and disbursements, or to require the comptroller to draw his warrant for the payment of such sum. The adjustment of the amount belonged to the auditing bureau in the department of finance, and if that department or bureau should refuse to audit it, a mandamus would be an appropriate remedy to compel them to do so. When *589 the claim is thus audited, it is presumed that the comptroller can be compelled by mandamus to draw his warrant for the sum allowed. ■The common council appear also to have proceeded in disregard of section 229 of the ordinance organizing the departments of the city government, and of the 10th section of the amended charter of 1853. By that section of the ordinance it was provided that a city surveyor, employed by the street commissioner to make a survey, shall be paid ~ at the rate of S3 per day, and the further sum of $1 per day may be allowed for an assistant, when necessary. By the 10th section of the amended charter, it is declared that “no additional allowance, beyond the legal claim for any service, shall ever be allowed,” Now, the relator, as the return shows, was a city surveyor, in the surveying bureau. So far, therefore, as his account consisted of services rendered by himself or his assistants, in making the surveys of wharves and piers, the rate of compensation was fixed by the ordinance referred to, and the statute of 1853 absolutely took from the common council the power of making any other allowance. The comptroller had a right to require the relator, as he did by his letter of February 2d, 1856, to make a detailed statement, showing the piers and wharves surveyed, and the time occupied in making such survey. The demurrer to the return of the comptroller to the alternative mandamus was not well taken. The judgment should be reversed for these reasons, and the mandamus denied. Roosevelt, J., delivered an opinion, holding that the employment of the relator by the street commissioner, to make a new survey and map, was unauthorized by the original resolution of the common council; that the employment by private contract, without advertising for proposals, was prohibited by statute, and that the common council could not, by its ratification, subject the city to the payment of a *590 claim which in itself was not a legal charge. In regard to the objection founded upon the statute requiring notice and contract with the lowest bidder, he said : Admitting, however, that a resolution of the common council purporting to assume a liability which had no legal foundation would be void, the relator insists that his claim, which the common council assumed, was not of that character, and that the objection, therefore, however sound, is not applicable. The services rendered by him were not, he contends, within the true intent and meaning of the term “ workand although the words used in the statute are “all work to be done,” and although such words are seemingly universal, he insists that work such as his, strictly professional, and requiring learning, skill and experience for its successful performance, is impliedly excepted. Would the legislature, asks his counsel, require the corporation, for instance, to do its suing and being sued by contract, to be given to the lowest bidder? And yet, when a lawyer brings an action against his client, his fees are uniformly described in the complaint as compensation for “work, labor and services.” Notwithstanding the seeming absurdity, at first blush, in this illustration, I am not prepared to say that, were there not a special statute regulating the office of corporation counsel, it might not. be advantageous to the city to get its law business done in gross at so much per annum, “by contract, to be given to the lowest bidder, with adequate security.” Be this as it may, it is sufficient for the present purpose that the question now presented is one of a different character. The work to be done for the corporation, under the resolution in controversy, was the “furnishing,” by the street commissioner, of about one hundred copies of Ewen’s map, already paid for, of the wharves and piers of the city, embracing the alterations and additions subsequently made. Was there anything in this work so peculiar that it could only be done properly by one man? Of all the surveyors in *591 New-York, and out of it, was Mr. Smith the only one competent to the task? ' Could no other individual, after ten days’ public notice, be procured, in any section of the country, to whom the performance of such a work might be entrusted, even “ with adequate security’’ that he should at all events do it, and do it well? A negative answer, as it seems to me, to such a question, would be preposterous. Besides, the law does not, as seems to be assumed, require that the bidders in such a case should themselves be surveyors. Any person, giving adequate security that the job shall be well done, may bid for the contract. If well done, whether done by himself or done by another is a matter of indifference. The law looks to the work and its cost, and not to the workman. Again, it is said that the services rendered were beneficial to the corporation; that an implied promise to pay resulted from such benefit, and that the resolution fixing the amount was only' a written expression of an obligation previously existing. •If this doctrine were to prevail, what would become of the restraints of legislation? The members and officers of the corporation would only have to tell their favorites to go on, without law, and then, by assuming the work, make the obligation binding, not on themselves, but on the tax payers. If contracts, without competition, were thus to be implied, how many express contracts would ever be awarded to “lowest bidders?” Even as the law stands, there is abundant evasion. Two hundred and fifty dollar jobs, as the records of the courts show, have become unusually numerous. Large jobs, calling for an expenditure of more than $250, are subdivided into fractional parts, and thus evasively placed within the exceptional provision. Should the doctrine of implied contracts be also sanctioned, the statute, in all its parts, would soon become a dead letter, and the correction of abuses, however gross, to any degree, however limited, be regarded as a mere utopian dream. *592 The court reserved its opinion upon the question whether the services of the relator were of such a character as to come within the statute requiring advertisement and contract with the lowest bidder, putting the judgment upon the other grounds stated. Judgment reversed and mandamus denied.