McLaren v. Mayor of New York — 1 Daly (N.Y.) 243

Majority

p. 243

John J. McLaren v. The Mayor, Aldermen and Commonalty of New York.

Headnote

The City Inspector of the city of New York, being authorized by a resolution of the Board of Health to employ the plaintiff’s assignor “ to remove temporarily, or until further ordered by the Board or the Common Council, all the contents of the sinks and privies of the city beyond tlie harbor,” made a contract accordingly, fixing the rate of compensation, as" directed by the resol ution, at fifty dollars per week for the first six months, and forty dollars per week for the time after that period.

Held, That such contract was within the power conferred on the Board of Health by section 0 of the act of. 1850, ch. 375, title 3, and section 27 of the act of 1857, ch. tiO; and the Corporation was chargeable with the expenses arising from the employment of the plaintiff s assignor.

Held further, That, it being competent, by the terms o'f the contract, for the defendants or the Board of Health to terminate it at any moment, it could no; "oe deemed a continuing contract, or as invading the powers of the Common Council as prescribed by the charter, to make contracts fvr the same work.

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Held further, That such contract was not in violation of section 38 of the charter of 1857, requiring all contracts involving an expenditure of over §250 to be founded upon sealed bids and proposals.

if seems, That the provisions of section 88 of the charter of 1857 apply only to contracts to be let by authority of the Common Council, and were never intended to apply to the Board of Health.

The Courts have no power, in collateral proceedings, to inquire whether the facts upon which a Board of Health determines a thing to be a nuisance justify its conclusion.

Appeal by the plaintiff from a judgment entered on the report of a referee at Special Term.

The action was brought by the plaintiff as the assignee of one Woodruff, to recover the sum of $3,360.80 from the Corporation for work and services in removing beyond the harbor the contents of the sinks and privies of the city. The contract under which the services were rendered was made with Wood-ruff by the City Inspector, under the authority of a resolution of the Board of Health. The agreement thus entered into was as follows :—“ Agreement made this 12th day of June, in the year one thousand eight hundred and fifty-eight, between Wm. H. Woodruff, of Newark, in the State of New Jersey, of the first part, and George W. Morton, city inspector of the city of New York, of the second part: Whereas, by a resolution adopted by the Board of Health of the city of New York, at a meeting held by them at said city," on the 11th day of June, in the year 1858, it was Resolved, ' That the city inspector be empowered to employ Wm. II. Woodruff to remove temporally, or until further ordered by this Board or the Common Council, all the contents of the sinks and privies of this city beyond the harbor, without nuisance, provided the rates of compensation, including all expenses, shall not exceed the sum of fifty dollars per week for boats of fifty tons burthen, and in the same ratio for boats of larger proportions, and that the city inspector be directed to order the work of removing the night soil to be commenced to-morrow evening.’

" How, therefore, this agreement witnesseth, that, in conformity with the above resolution, the said William H. Wood-ruff has agreed with the said party of the second part as follows: . ’ ' '

“ That he, the said William H. Woodruff, will, as long as the

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city inspector shall, unde? said resolution, employ him to do the work aforesaid, do and perform the same as is provided for and upon the terms stated in said resolution, and in case he shall be employed to do such work for the space of six months from and including the date hereof, the price to be paid to him therefor shall be only forty dollars for boats of fifty tons bur-then, and in the same ratio for boats of larger proportion, instead of fifty dollars as is provided in said resolution.

“ And the said party of the second part hereby, on behalf of the city of New York, and in pursuance of said resolution, agrees with the said Woodruff as follows :—That for the services herein on the part of said Woodruff, agreed to be done and performed, he, the said Woodruff, shall be entitled to receive as a compensation the price or rate stated in said resolution, provided, however, that if he, the said Woodruff, shall be employed as aforesaid for the term of six months, he shall he entitled to receive from the said city of New York only the sum of forty dollars per week, as is hereinbefore in the agreement on the part of said Woodruff contained.

(Signed) “ W. II. Woodeuff.

“ City Inspector’s Department.

“■This will certify, that so far (and by virtue of authority of the Board of Health) as the foregoing resolution may empower me so to do, that I have employed Mr. Wm. II. Woodruff to furnish vessels to receive and remove night soil from the city on the terms above set forth.

(Signed) “ Geo. W. Mortox,

“ City Inspector.”

The work was performed by Woodruff, and the bills therefor were examined and respectively approved by the city inspector.

The case was referred to Hamilton W. Robinson, Esq. as sole referee to hear and determine. He found as a conclusion of law that “ the said Board of Health had no power or authority to authorize the said city inspector to enter into the said agreement with the said William H.Woodruff, for or on behalf of the defendants, or to hind the defendants iri relation thereto,” and that the defendants were entitled to judgment in their favor.

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The plaintiff appealed from thq, judgment entered on the report of the referee to the General Term, where, the same was affirmed with opinion of the court by —

Daly, F. J".—I have no doubt of the power of the Board of Health to direct an act to be done, involving the necessity of entering into a contract in a matter coming within the prescribed sphere of its duties, and that a contract thus entered into is binding upon the Corporation; I also agree that there are cases in which that body, or the Common Council, may authorize contracts to be entered into involving a larger expenditure than 3950, without advertising for sealed proposals, as required by the act of 1857 [Laws of 1857, vol. 1, p. 886, § 38]. We held, in Smith v. The Mayor, &c. of New York, that a resolution of the Common Council, authorizing members of committees to hire carriages when engaged in transacting the business of their committees, conferred a valid authority to engage carriages when thus occupied ; that contracts of such a nature were not designed to be embraced by the act of 1857, although the amount expended in this way exceeded $250. In the administration of the affairs of the city, there are necessarity cases in which it was never intended that there should be ten days’ advertisement for sealed proposals before a contract could be entered into—cases where, from the nature of the. things to be done, the contract must be entered into at once. As an illustration, an action was tried before me recently, in which it appeared that, in lowering the grade of one of the public avenues of the city, a number of trenches were suddenly exposed, in which the dead had been buried during a pestilence that occurred about forty years ago. When the excavation had proceeded to a certain depth, the thin wall of earth, which had previously concealed this forgotten place of sepulture, suddenly gave way, and piles of the old and decayed coffins, which had been deposited one upon the other, fell in a mass into the avenue. It was in the month of August, and the most urgent public necessity demanded that the decayed coffins and their pestilential contents should be removed, with all possible expedition," to a place beyond the limits of the city. The City Inspector was accordingly directed by the Board of Health to engage persons at once to do so, in pur-.

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stiance of which he made a contract involving an expenditure of several thousand dollars, and I had no hesitation in holding that the contract so made was valid and binding upon the Corporation. But the provision in the statute, requiring a publication for ten days for sealed proposals, must be complied with in every, case where it can be done without detriment to the public interest; and to warrant a departure from it, the case must be one of public necessity, or one to which it is obvious the statute was never designed to apply. The present is not such a case. The resolution of the Board of Health directed the City Inspector to employ the plaintiff’s assignor to remove, temporarily and until further ordered, all the contents of the sinks and privies of the city at certain specified rates.

This resolution was passed in June, 1858, and under it a contract was entered into by the City Inspector with the plaintiff’s assignor, William H. Woodruff, to remove, until further ordered by the Board of Health or the Common Oouncil, all the contents of the sinks and privies of the city at certain specifi ed rates. This was a contract of a very extensive nature, involving a large expenditure of money. It contemplated the possibility of his employment for a period of more than six months, as it was expressly provided that, if employed for that space of time, the rate of compensation should be less, and it was proved in the case that Woodruff entered upon the performance of the work the day after the resolution was passed, and continued to perform if until the 18th day of May, 1859, a period of more than eleven months, and the plaintiff offered to show that the Corporation had paid for the work so done more than $18,000. No plea of public necessity could justify the Board of Health in contracting for so extensive an amount of work as this, without putting up the contract to public competition, in the manner required by the statute. It would have involved but a delay of ten days to publish the notice required by statute ; and as it was but the beginning of June, there could be no ground in public necessity for entering into a contract of such a nature at once. The conclusion of the Referee, therefore, was correct, and the judgment entered upon his report must be affirmed. It has been urged that the statute applies only to contracts made by the authority of. the Common Council; but,'after a careful examination of its-

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provisions I am satisfied that it- applies to any contracts for work furnished for the Corporation where the amount to be expended exceeds $250.

The work here was done for the Corporation, of which the Board of Health is merely a co-ordinate part..

The judgment is affirmed.

On the motion of plaintiff, a re-argument was had at the next General Term, when the judgment was reversed, with opinion of the Court by Hilton, J.

Charles Jones for appellant.

H. H. Anderson for respondents.

By the Court.

At a meeting of the Board of Health of the city of New York, on June 11th, 1858, at which was present Mayor Tieman, twelve aldermen, and sixteen councilmen, the following preamble and resolution was passed, receiving the vote of the Mayor, seven aldermen, and eleven councilmen, the remaining members present voting against it:

“ Whereas, the City Inspector has reported at his office over one thousand sinks and privies full, and no provision being made by the Common Council for the carrying away of their contents, the nuisance has become intolerable. Therefore, Resolved, That the city inspector be appointed to empower William H. Woodruff to remove temporarily, or until further ordered by this Board or the Common Council, all the contents of sinks and privies of this city beyond the harbor, without nuisance, provided the rates of compensation shall not exceed $50 per week for boats of fifty tons burthen, and in the same ratio for boats of larger proportions. And that the city inspector be directed to order the work of removing the night soil to" be commenced to-morrow evening.”

Under the authority of this resolution, the city inspector entered into the contract by it directed to be made, providing, 'however, that if the employment should continue for a term of six months, the compensation should-he only at the rate bf $40 per week, instead of $50 for each boat.

Woodruff forthwith entered upon the performance of this work by providing the necessary boats,- etc., ifi which he removed the contents of all sinks and privies delivered to him at the wharf, beyond the harbor of New York city, and without

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nuisance. He thus continued down to and including May 18th, 1859, all his bills for work ' and services under the contract having been approved and certified by the city inspector, and the work declared done in a satisfactory manner. The bills thus approved and certified for the period of time from April 29th to and including May 18th,1859, amounting to $3,360 80 with interest, having been duly assigned to the plaintiff, he brings this suit for their recovery. '

At the trial before the Referee, after these facts had been established, the plaintiff offered to prove that the defendants had paid Woodruff for all the work done by him under the contract prior to January 1st, 1859, a period of over six months, at the rate specified. That for a portion of such services an action had been commenced against the defendants, and on November 29th, 1858, a judgment was recovered against them therein by default for $18,296.84, which was paid in the following April. And that the plaintiff, when he' purchased the claim in this suit, knew of the previous payments by the defendants and of the said judgment. The evidence thus offered was ruled out by the referee, and to this ruling the plaintiff excepted.

Judgment having been given for the defendants, the plaintiff appeals, and thus it becomes necessary to inquire into the nature of the powers conferred upon the Board of Health, and to determine whether they were authorized to direct the maleing of the contract in question. The points involved are purely legal, it not having been intimated that the city was unfaithfully served during the period claimed, or at a rate of compensation at all objectionable.

In April, 1850, there was what might be termed a codificatian of all the laws relating to health in the city of New York, [See Laws 1850, ch. 275, p. 597], and the act then passed e'm-bodies all the powers under which the Board claimed the right to make the contract with Woodruff Its first title declares that all legislative" powers theretofore vested by any law of the State in the Board of Health of the city, other than as therein altered or modified, shall be vested in the Mayor and Common Council of the city, who, when acting in relation to the public health, or in the execution of their powers,, shall be known as the Board of Health of the city of New York, and of which ten members shall be necessary to form a quorum. Also, that

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tlíe president of the Board of Aldermen, and of the assistants (now Councilmen), the health officers, resident physicians, the health commissioners and city inspector shall be commissioners of health, who, in connection with the mayor, are required to meet daily at the office of the Board during such part of the year as the Board shall designate; thus providing the means for immediate action in all matters affecting the public health; the mayor, as president of the Board, being authorized to convene it at any time he shall deem it necessary so to do; and the object of this daily meeting of the commissioners being obviously for the purpose of bringing to him information respecting the health of the city, by calling daily together all the officials especially entrusted with its preservation.

Passing over the many sections of the act not necessary to be here adverted to, we find in its third title very full-and ample powers and discretion vested in the city inspector, health wardens, the mayor, aldermen, and commonalty, the mayor and commissioners, and the board of health, all tending to the public good, and enabling the particular board or officer designated to act speedily and promptly in all cases when action of that kind may seem beneficial towards preserving the health of the people. "We are referred to section 6 of this title, as conferring the power upon the Board to make the contract in question. I therefore give it in full:

“ The Board of Health, or the Mayor and the Commissioners of Health, when they shall judge it necessary, may cause any cargo, or part of cargo, or any matter or any thing within the city that may be putrid or otherwise dangerous to the public health, to be destroyed or removed. Such removal, when ordered, shall be to the quarantine ground, or such other place as the Board of Health shall direct. Such removal .or destruction shall he made at the expense of the owner or owners of the property so removed or destroyed; and the same may he recovered from such owner or owners in an action at law by the mayor, aldermen, and commonalty of said city.”

This section, in connection with sec. 27 of the charier of 1857, [See Laws, ch. 446, p. 883], which provides for “ an executive department of the city government known as the

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city inspector’s department, the chief officer of which shall be the city inspector, and shall have cognizance of all matters affecting the public health, pursuant to the ordinances of the common council, and the careful requirements of the Commissioners of Health and the Board of Health —it is contended vested in the Board ample authority to direct the employment of Woodruff in the manner here shown ; and charged upon the defendants the responsibility of providing for the payment of all the expense arising from such employment.

Having now seen the general nature of the powers conferred by statute upon the Board, before commenting upon its extent let us turn to the state of affairs shown by the preamble to this resolution, directing the contract in question. From that it appears that in midsummer of 1859, the city corporation, with ordinances in force prohibiting throwing the contents of privies in the North or East River below 42d street, [see ordinances revd. 1859, p. 319, 320], and requiring all such filth to be cast into vessels at the end of certain piers, under a penalty of $50 for each offence, had no vessels provided by which the daily accumulations of filth in this large city might he removed beyond its limits. It may also be presumed that under these circumstances the city inspector had declined to permit the contents of any privy or sink to be removed, because he was unable to specify in the permission the pier to which the same might be taken and deposited, [see Ordinances 1859, p. 321, sec. 16], and thus it was that the health wardens had reported to him and the Board, [see Laws 1850, p. 607, sec. 1, sub. 1 and 2], the existence of over one thousand full sinks and privies without any provision made by the defendants for removing their contents from the usual dumping wharves in boats in the ordinary manner beyond the limits of the city or harbor. The addition to the preamble that such a nuisance was intolerable, seems to me obvious to more senses than one; and if it were competent for us in any case to inquire whether a nuisance in fact existed after the Board of Health had declared that it did exist, there certainly is enough here shown to justify us in concurring in the conclusion at the time arrived at. But it has long been settled "that courts have no such power in collateral proceedings like this tó inquire whether the facts upon which

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a board of health determines a thing to be a nuisance justify its conclusion. Van Wormer v. The Mayor, &c., of Albany, 15 Wend. 262 .

We therefore must assume in the case before us that a serious nuisance, prejudicial to the health of the city, actually existed on the 11th day of June, 1858, and it remains for us to again refer to the statutes already cited to ascertain whether their provisions are sufficiently broad and comprehensive to include within them the power here shown to have been exercised..

The language'of section 6 of the act of 1850 [supra] in its applicability to the case in hand may be stated thus: “The Board, when they shall judge it necessary, may cause any matter or thing within the city that may be dangerous to the public health to be removed to such place as'it shall direct. 'The expense of such removal when so ordered may be recovered from the owner of the thing in an action at law by the mayor, aldermen and commonalty of the city.”

There can be no question that here was a thing which they very properly judged necessary to have at all times removed from beyond the limits of the city or the harbor, as its presence was dangerous to the public health. It was a plain case, therefore, for the exercise of the power which the statutes confer upon the Board, and their contract was valid and binding upon the defendants, unless it be open to the objection that it \vas a continuing contract, covering a greater period of time than the necessities of the case called for, and therefore void.

But an obvious answer to this objection is, that it appears, by referring "to the provisions of the agreement, that it was carefully guarded against a continuance one moment longer than the public necessit}” which called it into existence required, the engagement being only “ to remove temporarily, or until further ordered by this Board or the Common Council.” So that it was competent for the' defendants or the Board of Health to terminate it at any moment. It was, therefore, clearly not a continuing contract in any objectionable sense. It did not in the slightest degree invade the powers of the Common Council of the city, or interfere in any way with their right to direct a contract to be entered into for the performance

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of the same work in the manner prescribed by the charter. Or even without any such direction, they had but to order Woodruff to cease work under the contract, and his employment was at an end.

May it then be justly said that any danger can happen from the exercise of a power of this kind, and in this careful manner, by the Board of Health % I am aware it was argued by the learned assistant corporation counsel that if such a power exists, it may he extended to cleaning the streets of the city, filling sunken lots, removal of garbage, etc. as to all of which the Board of Health. might contract so as to invade the general powers conferred by the charter upon the mayor, aldermen and councilmen, but even admitting that it should be so extended, I have failed to perceive that any evil consequences would flow from thus holding, or that considerations of public policy forbid it. If it should occur that the Common Council, or any board oí department, should fail to provide by contract against such a public necessity as this case shows, I would he very sorry to believe that the Board of Health conld not provide temporarily for the emergency as was here done, reserving to the Common Council the right to terminate the arrangement made at any moment it should see fit.

« Such an act would not be an interference with the powers conferred upon the Common Council, hut, on the contrary, would be and should he regarded as an aid to those persons, to be called out when an emergency should arise demanding immediate action to protect the public from an impending danger.

A remaining objection is "that the contract was made in violation of sec. 38 of the charter of 1857, which requires all such contracts involving an expenditure of over §250 to he founded upon sealed bids and proposals. But on reading that section it will be seen that its provisions apply only to contracts to he let by authority of the Common Council, and besides it seems quite clear for obvious reasons that this prohibition was never intended to apply to the Board of Health, a body the very object of whose organization was to provide speedy means of remedy ing those threatened evils to the public health which the fore thought and wisdom of the Common Council might he insufii

Dissent

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cient to guard against by the usual course of proceeding by contract or otherwise.

Upon the whole case, I think it is right that we should hold the present contract to be within the power of the Board oí Health to enter into; and that it was not in any sense a con-tinning contract, or to be regarded as an invasion of the powers conferred upon the "Common Council, inasmuch as it reserved to that body the power to cancel it' at any moment.

The judgment should be reversed and new trial ordered, costs to abide event.

Bkadt, J. concurred.

[dissenting].—I still remain of the opinion that the Board of Health had no power to authorize the City Inspector to employ Woodruff to remove the contents of all the privies in the city of New York. I have no doubt of their power to order any act to he done, essential for the preservatian of the health of the city, and where a public emergency demands it, to direct a contract to he made at once, without waiting for the authority of the Common Council, or for the making of a contract by the heads of departments, in the mode prescribed by statute. The general power conferred upon them is in these words : “ When they shall judge it necessary, they may cause any matter or thing within the city, that may be putrid or otherwise dangerous to the public health, to be destroyed or removed.” [Laws of 1850, p. 609.] ( It rests with them alone to judge of the necessity, but if must appear from their action, or from what they directed to he done, that they adjudged that the matter or thing directed to be removed was putrid or otherwise dangerous to the public health. This does not follow from the preamble and resolution which they adopted. - The preamble declares that, whereas, the City In-specter has reported at his office over one thousand sinks and privies full, and no provision being made by the Common Council for the carrying away of their contents, and the nuisanee has become intolerable, therefore, resolved. How, the nuisance set forth in this preamble is the fact that over one thousand sinks and privies in the city were full \ and if their resolution had directed that the contents of these privies should

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be removed, it would be inferred -in consonance with the preamble, that they had adjudged that their continuance in that state would be prejudicial to the public health, and that they had ordered their contents to be removed as a matter of public necessity. But their resolution went far beyond this. It empowered the City Inspector to employ Woodruff to remove, temporarily, or until further ordered by them or by the Common Council, all the contents of sinks and privies in the city. It contemplated that this was to be done unless they or the Common Council ordered otherwise. It did not direct the emptying of the thousand or more that were full, but the.removal of the contents of all, whether full or not—a task that required and actually took more than a year to accomplish. Their preamble certainly did not indicate that they considered this essential for the preservation of the public health, nor could it he deemed so, unless suffering anything to remain in a privy could be regarded as having that effect. A work so extensive as this, involving the expenditure of a very large sum of money, and which required more than a year to perform, was one to he entered into under the authority of the Common Council, and to be put up to public competition in the mode provided by statute. I am disposed to give a broad and liberal construction to the power of the Board of Health, but I think it would be exceeding all just bounds to recognize their authority to make such a contract as this. It is true that the resolution declares that the City Inspector is to employ Woodruff to remove, temporarily, all the contents of the sinks and privies ■ in the city, or until further ordered by the Board of Health or the Common Council, but it is precisely in this way that the provisions of the statute are defeated which require all contracts made under the authority of the Common Council for work to be done to be put up to public competition, if it involves an expenditure of more than $250, and I cannot regard as a legitimate exercise of the power of the Board of Health the empowering of work to be done not embraced in the nnisanee set forth in their preamble, and which it is very manifest was not Remanded upon any ground of pressing public necessity.

Judgment reversed, and new trial ordered.

Cases cited

Van Wormer v. Mayor of Albany 15 Wend. 262 N.Y. Sup. Ct. p. 252