People v. Mayor of New York — 32 Barb. 35

Majority

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The People vs. The Mayor &c. of the City of New York.

Headnote

The attorney general may bring an action in the name of the people, to restrain a municipal corporation from exercising authority, in making a contract, or performing similar acts, not possessed by it under its charter or by law.

The passing of a resolution, by the common council of a municipal corporation, directing one of the departments to give a contract for work and labor to .specified persons, is a legislative act, and cannot be restrained by injunction.

But after such a resolution has been passed, on a proper case being shown for relief, an injunction may issue to prevent the resolution from being carried into effect.

In an action brought in the name of the people, for the purpose of obtaining such an injunction, on the ground that by the resolution the common council did not give the contract to the lowest bidders, as required by law, neither the contractors nor the bidders need be made parties.

The clause of the 38th section of the act of April 14, 1857, amending the charter of the city of Hew York, which provides that whenever any work is necessary to be done to complete or perfect a particular job, &c. for the corporation, which shall involve the expenditure of more than $250, the same shall be by contract, &c. does not include work forming part of a job which, in a contract for the residue of the job, appears to have been intentionally excluded, to Ije let in future, or to be otherwise done.

THIS action was brought by the attorney general, on behalf of the people, for the purpose of obtaining an injunction to restrain the defendants from passing any resolution directing the Croton Aqueduct Department to give the contract for building the gate-houses and aqueduct for the new reservoir, to Fairchild, Walker & Co. or to any other person, except upon bids made in pursuance of law. The ground of the action was that the common council had passed, in one board, and were about to pass in the other, a resolution directing the contract to be given to Fairchild, Walker & Co., who were alleged to have been the highest and not the lowest bidders, when proposals were received for that work; and that the resolution, if carried out, was a direct violation of section 38 of the amended charter of 1857, which directs the mode of giving such contracts, and requires them, in all cases, to be given to the lowest bidder. The complaint charged the acts complain

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ed of, to be a usurpation on the part of the municipal authorities, and in conflict with the provisions of the amended charter.

A motion for an injunction had once before been made, at a special term held by Justice Ingraham, and was denied, without prejudice to a renewal of it, on further papers. ( 9 Abb. 253 .) This was a renewal of the motion.

David Dudley Field, for the plaintiffs.

B. Busteed and L. B. Marsh, for the defendants.

It is apparent, from the opinion of Justice Ingraham, on the decision of the motion made before him in this case, at special term, for an injunction, and I have also learned from conversation with him on the subject, that he intended to decide for the purpose of the motion, that the attorney general has authority to bring an action in the name of the people, to restrain a municipal corporation from exercising authority in making a contract, or performing similar acts, not possessed by it under its charter, or by law. He denied the motion in respect to a restraint to that extent in this case, on the ground that it did not appear that the defendants were about to do the acts of that nature stated in the complaint, except upon information and belief, which was not sufficient. This defect existed in the plaintiff’s papers; but it appears to have been supplied by papers introduced by the defendants, and the fact to have escaped the attention of the court. The further papers now produced by the plaintiffs remove this ground of objection.

On this renewal of the motion, in pursuance of the leave given therefor, I shall not examine the question as to the right of the attorney general to bring this action, but shall follow the decision of Justice Ingraham, on that point, and allow the plaintiffs an injunction, if they have made a case in other respects which calls for such an interposition by the court.

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The prayer of the complaint is that the action of the defendants, in passing a resolution directing the Croton Aqueduct Board to have the gate-houses, aqueduct and their appurtenances, for the new reservoir, constructed by Fairchild, Walker & Co., under the contract made with them on the 2d of April, 1858, &c. be adjudged to be without authority and a usurpation of power; and that the defendants be enjoined from passing the resolution, or any resolution, directing the work to be done by those persons, or any person, except the same be awarded in the ordinary way upon sealed bids made in pursuance of notice; that the defendants also be enjoined from employing said persons, or any person, to construct said work; and that the defendants be prohibited from carrying out the provisions of said resolution. It is set forth in the complaint that the resolution had been passed by the board of councilmen and the board of aldermen-.; that it had been vetoed by the mayor, and re-adopted by the board of councilmen by a vote of sixteen to three; and that the same was before the board of aldermen for their concurrence. The other papers now before the court show that the resolution was again passed by the board of aldermen on the 5th of September, 1859, the same day the complaint was verified; two thirds of all the members elected having voted therefor, whereby it became adopted.

It was held by Justice Ingraham that passing the resolution was a legislative act, and that the defendants could not be enjoined from any legislation they might deem proper; and following that decision, aside from the facts that the resolution has passed, and is in force as far as it could be made operative by the defendants, I shall hold that an injunction against the passage of the resolution cannot be granted.

In regard to the residue of the relief sought—that the defendants be enjoined from employing Fairchild, Walker & Co., or any person, to construct the work mentioned in the resolution, and that the defendants be precluded from carrying out

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the provisions of the resolution—several questions have been raised, which must be considered.

The theory of the complaint being that the defendants are about to carry out the resolution, by employing Fairchild, "Walker & Co. to do the work, without lawful authority, and to the injury of the public, I perceive no reason why any persons should be united with the present plaintiffs or defendants as parties to the action. Baldwin & Jacos, to whom as the lowest bidders, in pursuance of due- notice inviting proposals, the Croton Aqueduct Board awarded the contract for constructing the gate-houses, pipe-chamber and aqueduct, on the 27th of October, 1858, have no right to the work under the award, before confirmation of the contract by the defendants. (L aws of 1857, ch. 446, §§ 32, 33. Ordinances of N. Y. City, of 1855, § 494. The People ex rel. Dinsmore v. The Croton Aqueduct Board, 6 Abb. 42 .) But if it were otherwise, and their rights should be infringed, they would have an ample remedy by action. They have not a pretense of claim to an injunction, and nothing is demanded injurious to their interests.

Fairchild, Walker & Co. have no interests, legal or equitable, involved in the litigation. So far as their contract for constructing the reservoir embraces the work in question, it is not sought to be, and will not be, affected by the result of this action. They will be entitled to perform their contract, and to damages if the contract is violated by the defendants.

The rights under their contract are in no way in question to their prejudice; and they have no rights under the resolution directing the Croton Aqueduct Board to employ them to do the work specified in it.

It is claimed by the defendants that they have the power to give this work to Fairchild, Walker & Co. without any letting or contract, by a three-fourths vote, under § 38 of the Laws of 1857, ch. 446. That section, after providing that all contracts to be made or let by authority of the common council, for work to be done or supplies to be furnished, shall be made by the

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appropriate heads of departments, under such regulations as shall he established by the common council, proceeds: “Whenever any work is necessary to be done to complete or perfect a particular job, or any supply is needful for any particular purpose, which work and job is to be undertaken or supply furnished for the corporation, and the several parts of said work or supply shall together involve the expenditure of more than $250, the same shall be by contract, under such regulations concerning it as shall be established by ordinance of the common council, unless by a vote of three-fourths of the members elected to each board it should be ordered otherwise.” The section next provides that all contracts shall be entered ■into by the appropriate heads of departments, and shall be founded on sealed bids, &c. Assuming that the contract of Fairchild,* Walker & Oo. does not embrace the gate-houses, &c. I do not think that the work can properly be regarded as “ work necessary to be done to complete or perfect a particular job,” &c. within the fair meaning of those words in the section cited. That clause cannot include work forming part of a job which, in a contract for the residue of the job, appears to have been intentionally excluded, to be let in future, or to be otherwise done. A contrary construction would, to a great extent, defeat the policy of the .provision, by making its evasion by three-fourths of each board entirely easy. In any case of an extensive work a small part might be let to the lowest bidder, according to the charter, and the residue procured to be done under the clause referred to. The clause was, doubtless, intended for cases of work omitted in a contract from inadvertence, or the necessity of which, to complete a job, was unforeseen when the contract was made.

Another position of the defendant is that the work in question is covered by the terms of the contract of Fairchild, Walker & Oo., and therefore there is no ground for granting an injunction. If the work is within that contract, an injunction against a new employment of those persons, and the carrying out of the resolution, would certainly be harmless.

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That fact, however, is not a reason for issuing an injunction. But if the contract of Fairchild, Walker & Co. does not cover that work, the resolution for their employment to do the work was unauthorized, and the carrying out of the resolution by the defendants, or a new employment by them of Fairchild, Walker & Co. to do the work, would be illegal. After a careful examination of the contract, and much consideration of the question, I am satisfied that the contract does not, by a just and proper construction, embrace the entire work of the construction of the gate-houses, aqueduct and their appurtenances. On the contrary, I think it apparent on the face of the contract, that this work, with the exception of such parts of it as would be performed by doing work plainly and particularly and not in general terms, specified therein, was intended to be excluded from the contract. The 4th and 13th specifications provide for excavations of areas for the foundations of the gate-houses, and making excavations for the foundations of the gate-houses, pipe-vaults, laying pipes, and the aqueduct &o., of such depths &e. as the engineer may direct; but beyond that, I find no provision, in terms, for building the gatehouses by those contractors. The absence of such a provision is strong evidence that it was not intended to bring that provision within the contract. In addition to that the 26th specification clearly contemplates that this work will be done by other persons. The language is, “ During the construction of the masonry of the gate-houses, pipe-vaults, conduit, the laying of pipe and other necessary work, the Croton Aqueduct Board reserves the control of so much ground as the engineer may deem necessary for the proper accommodation in the construction of such works, and of the persons employed on them.” General language in the specifications must be construed in connection with this clause, and so limited in interpretation as to allow the clause an effect in accordance with its obvious meaning.

It is impossible for the court, and the court ought not if it could, updfsthis motion, to decide precisely how far Fairchild,

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Walker & Co. are entitled, under the contract, to do work which will be in aid of the construction of the gate-houses, and other things mentioned in the 27th specification. If thei construction of the gate-houses is not committed to those persons, by their contract, as I have already expressed the opinion it is not, that is sufficient to call upon the court to prevent, by injunction, the execution of the resolution of the defendants for giving them the work, and to prevent any new employment by the defendants of those persons to construct the gate-houses &c., except by contract founded upon a sealed bid or proposal, as provided in section 38, above referred to, of the law of 1857; the injunction not, however to affect the rights of Fairchild, Walker & Co. to perform, or the right of the defendants to permit performance of, the present contract according to its terms.

[New York Special Term,

December 5, 1859.

T. R. Strong, Justice.]

I think the complaint sufficient as a pleading, to warrant the relief demanded, to that extent. As a pleading it sufficiently shows an intention by the defendants, beyond the passing, to carry out or execute the resolution. In regard to a public injury, it shows that according to the bid of Baldwin & Jaycox for the work, there would be a saving to the corporation of Hew York by letting the work pursuant to the charter, instead of having it done under the contract of Fairchild, Walker & Co. upon a single item of the work, of $16,730.

An undertaking must, however, be executed on the part of the plaintiffs, as a condition of granting the injunction, in a sum and with such sureties as shall be approved by the court, on one day’s notice to the defendants, and be duly approved and filed.

An injunction is ordered, according to this opinion, upon an undertaking being first given within ten days.