p. 47Cummings now came on- to be heard together, by agreement of counsel.
Abbott Brothers and Charles O'Conor, for Dinsmore and Wood.
-—I. The ordinance (§ 498) did not require the oath of Mr. Wood. 1. It is clear that the word “ party” is not employed as a noun of multitude. The ordinance very reasonably supposes that some one person will perform the act of presenting the bid, and requires his oath. Subdivisions 1 and 2 of section 497 express this idea distinctly. They require the actor to specify distinctly his partners. This would seem unanswerable as to the intent. To say that “ a party” shall make oath, is rather an impropriety in language. A “ pa-rty” can hardly swear, though its members may; but then each member ^swears as an individual. There can be no partnership, or participation of responsibility or profit and loss, in bearing testimony on oath. It could not be truly said that an army, a regiment, a political party, a religious society, or a partnership, verified a thing by “ the oath in writing of such army, of such regiment, of such Democratic, Whig, Republican, or Know-Rothing party, or of such partnership.” The word party is a relative, and it must be held to relate according to the principles of common sense. It must refer to an individual, and not to a multitude. Party, or plaintiff, or defendant, when used in statutes prescribing oaths to be observed, has been often held to prescribe only that one of the parties should verify. (See instances in Code, § 157, construed with § 156, and the case of Drevert v. Appsert, 2 Abbotts’ Pr. R., 165 ; Code, §§ 181, 182, 207, 220 ; Supreme Ct. Rules, No. 46; 1 Rev. Stats., 4th ed., 336, § 62; Ib., 664, § 51; 2 Rev. Stats., 188, § 4; 190, § 20; 206, § 2; 648, §§ 69, 70; 649, § 72; 779, § 10 ; 1 Laws of 1857, 711, ch. 344, §§ 15 and 21.) 2. If Dinsmore & Wood were by mutual agreement united in this contract, either of them had .power to sign the name of the other; or if not, he had at least power to make the bid. If he had not power to sign the name of his fellow, the surplus signature is at worst a nullity. Supposing that Wood did not sign the bid, then section 498, on the construction most unfavorable to Wood & Dinsmore, was fully complied with by Dinsmore’s oath alone.II. The omission of Wood’s oath, if a defect at all, is merely
p. 49“ estimate” that corrections are to be made. Row, section 497 and its subdivisions all relate to and prescribe what shall be contained in the “ proposals for estimates” to be published by the department. 4. The importance of compelling every one connected in interest to take an affidavit of purgation, proves nothing. The question here is not what measure and extent of precaution might have been judiciously employed by the corporation when making their ordinances. The sole question is, how far the body went in that direction. And subdivisions 1 and 2 of section 497 expressly declare that the legislative authority of the city when framing the ordinance did not desire to exact an oath from every person “ interested therein.” It was quite reasonable to allow one of a partnership to take the oath. The other partner or partners might be at a distant point. These contractor-firms conduct extensive operations, and it is often necessary for one of them to superintend work a thousand miles from the place where other contracts are progressing under the charge of the others. If the. court should think that the ordinance did require the oath of every partner, still the defect in question, notwithstanding the undeniable materiality of the oath, would be an “ error of form” merely.III. If the want of Wood’s oath is a defect of form curable by amendment, Dinsmore & Wood were never put in default pursuant to th & jeofail branch of section 501. 1. For this purpose a "written notice was necessary^ and none was ever given. It is a settled rule of construction by the courts, that whenever a statute requires any person conducting a proceeding prescribed by law to give a notice, such notice must be in writing. This applies to parties acting for their own benefit'or in their own interest; a fortiori, it should be a rule of action to public officers exercising a public authority. Still more strongly should it
p. 50apply to a many-headed body acting as a board. (Jenkins v. Wild, 14 Wend., 539 , 540; Lane v. Cary, 19 Barb., 153 , 540 ;. and see Rathbun v. Acker, 13 Barb., 393 ; McDermott v. The Board of Police for the Metropolitan Police District, 5 Abbotts' Pr. R., 422, and cases cited.) When private parties by private contract with each.other bargain for notice, verbal or any other notice, however informal, may suffice. If the parties do not bargain for written notice, the courts cannot exact it; but it is the duty of the court to direct th& forms of practice in executing law. (McEwen v. The Montgomery Insurance Company, 5 Hill, 104 .) 2. The jeofail section contemplates some leind of notice by the board, that there exists what the board considers a defect, which is an “ error of form.” This was never given. It cannot mean mere knowledge of the/aci that there was a defect ; this they had when they drew the estimate. It must be notice of a view taken by the board. The words “ notice of any such defect” relates to the words “ error of form.” Surely this means notice of something which the board deems an “ error of form.” A different construction would mislead the estimator. It would not exhort, as the law" does, to repentance and amendment; it would say, “ Despair and die.”IY. The various exceptions taken to this bid from time to time deserve no favor. First, there is a fatal defect and a final rejection; next day, there is another defect and another rejection; then on the argument a third and most frivolous objection is suggested. These things do not look as if there was an anxious search for the lowest solvent bona fide bidder. There is too much captiousness about the whole proceeding.Y. The construction should be in favor of the object,—i. e., securing to the public the lowest bid. It should be favorable to that end, and unfavorable to captious criticisms. Allowing such criticisms enables the board to- exercise favoritism, to exclude the lower and let in the higher bid.- Such a power would be dangerous to the public interest. The primary object of all these provisions .is to exclude official favoritism.YI. The objection that no mandamus can issue until the action of the Croton Aqueduct Board has been before the Common Council for confirmation, under section 494 of the ordinance, is untenable. 1. There is no way in which a rejected estimate
p. 51can be carried before the Common Council. “ Bor shall any contract be made, signed, or executed,” says section 494, “ until all the proposals, estimates, contracts, and papers relating there to, shall have been laid before the Common Council, and confirmed by them, and an appropriation made therefor.” The word “ thereto” relates back to the word “ contract,” and this word relates evidently to the written agreement intended to be made by the department with the successful bidder, and not the job or wprk to be given out; for it is a contract which is to be made, signed, and executed. The only papers to be laid before the Common Council are those on which the proposed contract with the successful bidder is to ,be founded ; and these do not necessarily include rejected bids of rivals. 2. Section 494 does not give the Common Council any revisory power over the action of the Aqueduct Board. The contract is to be made by the department, the appropriation by the Common Council. The object of laying the papers before the Common Council is to enable them to appropriate the sum actually required, and to protect against any danger that fictitious or exaggerated contracts might be palmed upon them. Bo, power whatever is given to the Common Council to reject the bid approved by .the Aqueduct Board, and awa/rd the contract to another bidder. (Russ v. The Mayor, &c., of New York, 12 N. Y. Leg. Obs.,41; citing Smith v. The Corporation, Seld. Notes, Oct. 1853, page 7.) 3. If section 494 is construed so as to give the Common Council a power to revise the contract and shake it with a different party than is selected by the department, it is inconsistent with section 38 of the charter of 1857, which expressly vests the whole power of making contracts for work in the respective departments.VII. The case is therefore within the general rule as to mcmidamus (see Kendall v. The United States, 12 Pet., 610 ), as that rule has been applied in the following instances:—1. Mandamus lies to compel supervisors of a town to issue warrants for the collection of a tax, although they decide the tax not to be assessable, and their power to • issue it to have been exhausted by adjournment. (The People v. The Supervisors of Chenango, 4 Seld., 317.) 2. To audit an account, although they decide the claim to be illegal, and refuse to audit it on that ground. (Bright v. The Supervisors of Chenango, 18 Johns., 242 ; Hull v. The
p. 52Supervisors of Oneida, 19 Ib., 259; Doubleday v. The Supervisors of Broome, 2 Cow., 533 ; The People v. The Supervisors of Cayuga, Ib., 530; The People v. The Supervisors of Albany, 12 Wend., 257 .) 3. To compel a town clerk to record a survey, which he has decided to be informal, and refuses to record for that reason. (The People v. Collins, 7 Johns., 549 .) 4. To compel canal commissioners to appraise damages (Ex parte Jennings, 6 Cow., 518 ), although they have decided relators not to be entitled to damages, and that they have no jurisdiction to assess them. (S. C., 530, and onw.) 5. To compel a justice of a district court to issue a dispossess warrant in summary proceedings, though he has decided that his proceedings have been stayed. (Tire People on rel. Nevins v. Willis, 5 Abbotts' Pr. R., 205.)YIII. Whether the bid is in compliance with the ordinance of 1849 is immaterial. The relators are entitled to the mandamus, if their bid is in compliance with the provisions of the new charter. 1. The new charter prescribes that the contract shall be given to the lowest bidder whose bid is in conformity to the following requisitions. (1 Laws of 1857, ch. 446, § 38.) It must be in compliance with the public advertisements for the bids.. The terms of the proposed contract must Be settled by the corporation counsel. Security pxust be given in the manner prescribed and required by ordinance. 2. If these requisitions are complied with, the bidder is entitled to the contract. (Charter of 1857, § 38.) And the Croton Aqueduct Board cannot relieve themselves of their obligation to give the contract to a bidder who has complied with these requisitions, by saying that his bid is not in conformity with the rules of the ordinance of 1849, that ordinance not having been mentioned or referred to in their advertisement.Richard Busteed and James R. Whiting, for the Croton Aqueduct Board, respondents.
I. The proposals put in by the relators were defective in substance, in not being verified by Mr. Wood as well as by Mr. Dinsmore. What was known to the former might not have be,en known to the latter. The same reasons which required an affidavit from one required it from both. Besides, the proposal itself purports to be made by both Dinsmore and Wood.
p. 53II. The form of the proposal in its terms shows that it was to be sworn to by Wood as well as by Dinsmore.III. Even if the defect in the verification was one only of form, it was not cured by an amendment within twenty-four hours after notice, as required by the ordinance. Notice was given of the defect on the 26th of August, and no notice was taken of it until the 30th.IV. The Oroton Aqueduct Board, in deciding the question oí the forms of proposals, act judicially, and their decision is not the subject of review. It is final and conclusive. The writ of mandamus may be invoked to compel them to decide, but it cannot direct them how or in what manner to decide.V. If the Oroton Board commit an error in rejecting a bid, on the ground that it does not conform to the required forms,, or is substantially defective, unless they act corruptly, there is no appeal from their judgment.David Dudley Field, in support of motion of the Messrs.Cummings.
I.The proposals put in by Dinsmore & Wood were defective in substance, in not being verified by Wood as well as by Dinsmore. What was known to the former might not have been known to the latter. Every consideration which required an affidavit from one required it from both. 1. The reason of the thing requires it. Otherwise the ordinances may always be evaded, by taking in an ignorant associate to make the oath. 2. Strict construction of the language requires it. Affidavit of the apfliccmt are the words used. Wood is an applicant, but his affidavit is not furnished. 3. The instructions furnished by the board to bidders require it. 4. Analogóus instances favor the Same construction. (Code, §§ 157, 220, 390.) In Chancery, formerly, if there were several defendants, all had to sign and swear to the answer. (1 Barb. Ch. Pr., 145.)II. Even if the defect'in the verification had been one of form only, it was not cured by an amendment, or offer to amend, within twenty-four hours after notice, as required by the ordinances. Notice was given of the defect on the 26th of August, and no notice was taken of it till the 30th.III. The bid being defective, the defect was not ofform merely, but of substance. What is á substantial defect ? The omission of what is essential to make the bid valid. If the manner
p. 54in which the essential thing is stated be faulty, that is a formal defect. Look at the bid, and see if all that is essential is put there: if it be, then, though it be faultily expressed, it may be amended, and will then stand. Here both the defects were sub- . stantial. (See McNamara on Nullities, tit. Jurisdictional Defects ; 4 Den., 118 ; 3 Comst., 132 ; Stocking v. Hill, 6 Hill.)IY. But even if the defect was formal only, it was not amended within twenty-four hours after notice. Verbal notice was enough. (Minor v. Clarke, 15 Wend., 485 ; Story on Notes, § 341.) So that, whether the defects be considered substantial or formal, the result is precisely the same. Dinsmore & Wood have not brought themselves within the condition on which alone they can amend, and the rights of other bidders have attached.Y. The only other competing bid is that of Messrs. Eairchild, Coleman, Walker & Brown, whose surety is Jonathan W. Allen, one of the tax commissioners. The objection is, that a tax-commissioner is not a competent surety for a contractor with the corporation.[We omit the argument of counsel in support of this objection, for the reason that the question was not considered by the court,]YI. The defect in the bid of Fairchild & Co., arising from the fact of Mr. Allen’s being a tax commissioner^ is a substantial defect. It is the same as if hut one surety was offered. Their bid was therefore a nullity, and the Messrs. Cummings are entitled to the contract, upon the plainest principles' of fair dealing, as also by the rules of law.Richard Busteed and James R. Whiting, opposed.
I. The award of the contract being made to Fairchild & Co., the application for this writ comes too late.II. Cummings & Co. have no right to object to the surety ’offered. The comptroller is the sole judge of the adequacy and sufficiency of the surety; and Mr. Allen is not incompetent to be a surety, within the meaning of the prohibition of section 38 of the Charter of 1857.III. If the surety is found by the comptroller insufficient or inadequate, other surety may be submitted. (Ord. of 1849, §506.)
p. 55IY. Until the comptroller has passed upon the question of the sufficiency and adequacy of the surety, no cause of complaint can exist.Y. If the application for this writ is seriously entertained, its effect will be to withdraw from all the heads of thfe various departments of the' city government all proposals for contracts, and make this court substantially executive, instead of judicial officers.YI. The remedy, if any, must be by direct suit, or by indictment, where the department acts corruptly, or by application to the Common Council, to whom the awards must be reported for confirmation.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
p. 56persons 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
p. 57alone, 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
p. 58the 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
p. 59to 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.