People ex rel. Dinsmore v. Croton Aqueduct Board

By the Court. Mitchell J. The first of these cases comes up on appeal from a decision at special term, refusing a mandamus ; the second is an original application for the same remedy for other persons. The Croton Aqueduct Board advertised for proposals for making a new reservoir. Dinsmore and Wood presented their proposals, and were apparently the lowest bidders. But they -were presented in the name of Dinsmore, Wood & Co., when there was no third person in partnership with them. They were signed in the name of Dinsmore, and in the name of Wood, as well as in the name of Dinsmore, Wood c6 Go.; and no person made the necessary affidavit except Dinsmore. Wood made no affidaxdt. At the appointed hour and place, the bids were opened by the board, sitting as such,' and the comptroller being then present, as also Dinsmore and other contractors. The omission of Wood’s affidavit xvas then noticed, and the bid of that firm was declared by the board defective, and on that account absolutely rejected by them. The fact of such rejection was publicly announced by the board, and notice thereof given on the spot to Dinsmore. The defect was not supplied within twenty-four hours after this notice, nor until the 31st of the same month. The ordinance organizing the departments of the corporation (§ 501) requires all bids to be rejected which are not furnished in conformity with sections 497, 498, and 499, and thereupon that the contract be awarded to the lowest bidder; but provides that no bid shall be rejected for any error of form, provided the [56] persons making it shall correct the same and make it in conformity with the ordinance within twenty-four hours after notice of such defect. The short time in which our decision is to be made, forbids our doing much more than stating our conclusions, without our reasons for them. The notice required by the ordinance need not be in writing; the law implies that all notices should be in writing which form part of a judicial proceeding, but not those relating to the formation of contracts. The notice, although it pronounced the proposal fatally defective, was sufficient. It pointed out what the defect was, and then it was incumbent on Dinsmore to judge for himself whether the defect could be cured or not. The ordinance seems to recognize that there may be a departure from its requirements, which may be deemed an error of form, and that such error may be cured; but it can hardly be, that under “ error of formn would be included an utter neglect of all the required preliminaries. Preliminary matters were required of the bidders, with a view to prevent a violation of the laws and ordinances as to contracts; laws and ordinances which were passed with the intention of excluding certain classes of persons from being interested in contracts, on the supposition that, if interested, they would have opportunities- of gaining unfair advantages, and sometimes would authorize work to be done more because-they would wish the profit of the contract, than from a belief that the public needed it. The exclusion of these persons was not a matter of form, and so the due proof which the ordinances required, that no such persons were interested, could not be a matter of form. The entire omission of. that affidavit would be fatally defective. There are other matters required by the ordinance, which are matters of convenience only, such as the residence of the person making the bid, the furnishing of the estimate to the head of the department, and at his office. Section 497 requires the estimate to contain certain statements ; among others, that no member of the Common Council is interested; and it is to state all persons who are interested. It is to be verified'by the oath of the party making the estimate. The party making the estimate was not Dinsmore or Wood [57] alone, but both of them; it was an appropriate use of the term “ party” in this case, as it referred to a contract, in which those on each side or part of the contract are called parties or party. The object of the affidavit was like that of the old answer in Chancery, to search the conscience of the affiant—for this purpose the oath of each was equally necessary in both cases. It was not enough for one alone to make his affidavit; that did not gain the object of the law—the searching of the conscience of the other. To sustain a ma/ndamus, the applicant must have a clean' legal right. (People v. The Canal Board, 13 Barb., 443; People v. The Supervisors of Columbia County, 10 Wend., 366.) Has a bidder on proposals for estimates, any legal right,—any cause of action,—until the contract is made with him, and approved by the Common Council ? The Mayor and Common Council represent the corporation of Hew York. As a general rule no corporation can be bound without its consent manifested by an act of the corporate body. The same rule applies to the city of New York, unless an alteration has been made by the acts of 1849, 1853, and by the charter of 1857. Section 39 of the last act requires all contracts that are to he made by authority of the Common Council, to be made by the heads of departments under such regulations as shall be established by ordinances of the Common Council. So, when work is to be done, or supplies furnished to complete a particular job, and the expense together exceeds $250, it is to be by. contract, under regulations .established by ordinances of the Common Council, unless three-fourths of the members elected to each board order otherwise. All contracts are to be entered into by the heads of departments, and to be founded on sealed proposals, and to be given to the lowest bidder who gives security in the manner required by the ordinances, and the terms of whose contract must have been settled by the corporation counsel in previous specifications prepared as a preliminary to his bid. Thus far, it does seem as if the heads of departments were assimilated to the heads of our State and national departments, who make contracts without the necessity of the Legislature ratifying them; the Legislature only ordering the contracts to be made, not making them. But the contracts in all these cases are to be made under regulations established by ordinances of [58] the corporation. Section 32 of this act declares that the existing ordinances shall apply to the departments so far as the same are applicable and not inconsistent with this act. Section 491 of the ordinances is consistent with the act, and forbids any contract to be made, signed, or executed, for'a.sum exceeding $250, until all the proposals, estimates, contracts, and papers relating thereto shall have.been laid before the Common Council and confirmed by them, and an appropriation made therefor. The acts of 1849 and of 1853 were sufficiently similar to the act oflSSY, to be guides as to the• interpretation of the last; and the ordinance last quoted was deemed consistent with those acts. It is so, in fact: those acts gave power to the heads of departments to make contracts, in order to take the power of selecting a contract for the Common Council; to throw an additional check on the making of contracts, not to take off any check which the corporation before held over them,—not to throw into the hands of heads of departments the absolute right to make a contract, which had been found to be dangerous when exercised by the Common Council alone. In the spirit of those laws, the Common Council made this ordinance (§ 494), forbidding any contract to be made until it be confirmed by them, and an appropriation be made therefor. The Common Council thus retain a veto on all contracts ; it cannot, of itself, make any; the heads of departments cannot make, sign, or execute any without the approval of the Common Council, but are the executive officers, who, when the work is ordered, are to originate the contracts, and complete them, when the Common Council confirms them. Before this is done by the Common Council, no contract is made, n’o right of action arises in favor of any contractor. The Common Council may consider all the bids too high, and refuse to have the work done at such prices ; they may find such a change in their finances between the first suggestion of the work and the presentment of the bids, that what was prudent at the first period may have become wasteful extravagance at the last. They may have no funds to appropriate for such purposes, or the lowest bid may far exceed the sums which the law allows them to appropriate : for these and other reasons, the power is reserved to them, who are to incur and pay the debt, to decide whether they will incur it or not, when the lowest price for wdiich it can be done is presented [59] to them. Besides, these various laws were made, not to give a right to the lowest bidder to have a contract made with him,— they were not made for his benefit, but for the benefit of the public alone, and that the public might have the work doné at the lowest price. In this view of the law, the lowest bidder has no cause of action, if the work should now be done 'T nor any remedy against the corporation, if the work is given to another, although a higher bidder. The officers giving to a higher bidder might, perhaps, be responsible, and the corporation might be exempt from any payment beyond the lowest bid, and in those respects the law would be effective. This last objection applies to the motions in both cases* The order denying the mandamus in the first case, should be affirmed with costs ; the motion in the second case for a mandamus, should be denied with costs.