People ex rel. Shay v. McCormack — 167 A.D. 854

Majority

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The People of the State of New York ex rel. James P. Shay, Respondent, v. Charles J. McCormack, as President of the Borough of Richmond, City of New York, Appellant.

Second Department,

May 28, 1915.

Headnote

Municipal corporations — award of municipal contracts in city of Mew York — charter powers of heads of departments — review by court of rejection of bids — mandamus.

As section 419 of the charter of the city of New York provides that if a borough president or head of department shall not deem it for the interest of the city to reject all bids, he shall without the consent or approval of any other department or officer of the city government award the contract to the lowest bidder, the statute by implication gives to said officer discretionary power to reject all bids if he deems it for the interest of the city so to do.

Hence, the court has no power to review the motives of such officer in rejecting all bids and cannot issue mandamus compelling the award of the contract to a person who was the lowest bidder.

Appeal by the defendant, Charles J. McCormack, as president, etc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk

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of the county of Richmond on the 2d day of March, 1915, granting relator’s motion for an alternative writ of mandamus.

William E. C. Mayer [Terence Farley and Frank L. Polk with him on the brief], for the appellant.

J. L. Farrell, for the respondent.

This is an appeal from an order granting a motion for an alternative writ of mandamus directed to the president of the borough of Richmond, requiring him to rescind and withdraw the rejection of bids opened December 22, 1914, for shoeing the horses of stable A of the street cleaning bureau in that borough for the year 1915, and accept the bid of the relator. The charter of the city of New York, section 419, provides that “ if a borough president or the head of a department shall not deem it for the interest of the city to reject all bids, he shall, without the consent or approval of any other department or officer of the city government, award the contract to the lowest bidder.”^[1] Conversely, if the officer deem it for the interest of the city to reject all bids, he shall do so. But the present order contemplates a-writ that may take from the president of the borough the authority to reject all bids and compel him to award the contract to the relator, who was the lowest bidder. The statute implies that he may reject all bids; the court says that upon some state of facts he may not. The statute endows him with the power to consider and to decide, in view of the public interest. The court asserts that it is invested with a superior ability that enables it to fathom the moral status of the officer, to test the validity of his mental processes, and, subverting his determination, constrain him to adopt as his own the thoughts of the court and the conclusions to which they lead the court. So the officer becomes one who must have reasons for his rejection of bids; he must collect and preserve them in such form that he can lay them before the court; they must be so logical as to exact its approval. Otherwise the court will reject them and substitute its own reasoning

* See Laws of 1901, chap. 466, § 419, as amd. by Laws of 1910, chap. 554. —[Rep.

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founded upon such apparent facts as are presented to it, and constrain the officer to be its agent to put in force its determination founded thereon. The mere suggestion of such an attitude on the part of the court compels the immediate rejection of the present application. But the relator may answer that the proposition is carried too far, and that the court will not exercise such power, unless it appear that the president of the borough has been induced to act through some moral obliquity. In that ease the argument would be this: The president of the borough is authorized to decide whether all bids shall be rejected. If he decides with moral honesty, the court will not review his mental processes and resulting decision. If, however, he is ruled by an immoral motive, the court will examine his determination and the facts as they come to it, and, as suits its judgment, will compel him to reject all bids, or to accept the lowest bid. Thus the court would be substituted to exercise the power granted by statute to the president of the borough, if it deems the officer morally disqualified or errant in political ethics. In brief, the court would qualify itself for discharging a statutory duty placed upon an official by disqualifying him by reason of perverse motive. An attentive study of the decisions fails to discover such prerogative of the court based upon the moral feebleness or degeneracy of the person to whom the statute consigns the welfare of the city in the matter under consideration. If, now, the evidence of bad faith by the president of the borough be sought in the papers, it is tendered by the relator’s information and belief that his competitor in bidding, or some third person, has uttered something which is imputable to the president of the borough, although that officer was not privy to the statement or responsible for the words of the speaker. It is shown that the president of the borough did not reject the bids until January .30, 1915, when nearly a twelfth of the year during which the service should have been rendered had expired. That would seem to need explanation, but it should be made to whomsoever the president is amenable. Ho good purpose would be subserved by" making it to the court, as it has no power to take cognizance of it in the present proceeding.

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The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Jenks, P. J., Garr, Stapleton and Putnam, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.