People ex rel. Williams v. Dayton — 55 N.Y. 367

Majority

p. 367

The People ex rel. Edward W. Williams, Appellants, v. Gilson A. Dayton, Auditor, etc., Respondent.

Headnote

The provision of section 3, article 7, of the State Constitution, as amended in 1854, providing that “all contracts for work or materials on any canal shall be made with the person offering to do or perform the same at the lowest price, with adequate security,” does not deprive the legislature of power, during the progress or after the completion of work so contracted for, from increasing the price or making an additional allowance for work done; and an act to that effect is not in conflict with such constitutional provision. (Grover, J., dissenting.)

The practical construction given by the legislature to a constitutional provision, for many years acquiesced in and acted upon unquestioned by the executive and administrative departments of the government, is entitled to controlling weight in its interpretation, and has almost the force of a judicial exposition.

The legislature has fiill power to discharge legal or equitable obligations of the State; and the exercise of this power is not reviewable by the courts. In an act making an allowance for that purpose it is not necessary to specify the grounds of the allowance, or to prove them in court.

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(Argued November 31, 1873;

decided January 20, 1874.)

Those alleging the invalidity of a legislative enactment, must show it • affirmatively.

A clause in a contract for certain canal improvements bound the contractor to make any changes when directed by the canal commissioners and division engineer in accordance with section 9, chapter 377, Laws of 1850, which requires that, before any alteration is made, a written statement of the object and expense shall be submitted to the canal board and its consent obtained. A change of plan was thus directed and work done, the prices for which were not fixed by the contract. The prices for such work were fixed by the engineer and canal board. Some of the items of work were not included in the estimate submitted to the canal board. Held, that an allowance for such work was proper, and that payment therefor was not confined to the precise amount estimated.

Appeal from, order of the General Term of the Supreme Court in the third judicial department, affirming an order of the Special Term denying a motion for a peremptory mandamus. (Reported below, 1 N. Y. S. R. [T. & C.], 14.)

On November 15th, 1869, the relator entered into a contract with the people of the State, whereby he agreed to construct and finish the work of deepening the Erie canal, at a certain point in the city of Rochester, cutting down Genesee River aqueduct, building vertical wall and improving the entrance to Rochester weigh-lock. This contract was let to the relator as the lowest bidder, upon a public competition. He was to be paid at certain rates for the different kinds of work, and among other things was to be paid $3,500 “ for removing ice and snow, and for pumping, bailing and draining, including the expense of constructing and removing coffer-dams, excavating ditches, and all other items of cost caused by pumping, bailing or draining.” The contractor bound himself to perform the work “ for the prices and compensations therein specified, without any further claim for compensation.”

The contract contained a clause to make as directed “ any alteration in the form, dimensions, location or. manner of doing work ordered by the canal commissioner and division

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engineer in accordance with section 9, of chapter 377, of Laws of 1850.”

On May 9th, 1870, the legislature passed act chapter 767 of the Laws of that year, entitled “An act to authorize a tax of one mill per dollar of valuation of the year 1870, for construction of new work upon and extraordinary repairs ot the canals of this State.” Said act contains the following provision:

“ The canal commissioners are hereby required to change the sum named for removing ice and snow, and for pumping, bailing, draining, removing coffer-dams in existing contract for deepening Erie canal from Lyall street to first lock east of Rochester, including cutting down Genesee River aqueduct, and constructing vertical wall from same to Griffith, and improving entrance to Rochester weigh-lock, to thirteen thousand five hundred dollars, instead of the price named in said contract.” At the time of the passage of the act, the work under the contract was substantially completed. In accordance with this provision, the canal commissioners, on June 3d, 1870, passed a resolution changing the price of the said item from $3,500 to $13,500.

The “final account” under this contract was made on or about May 2d, 1873. It shows the amount of work done by the relator, and the sums paid him, and arrives at a balance due him of $10,422.44. In arriving at this balance of $10,422.44, the price of the item of bailing and draining was put at $12,000. The contractor was also credited with $1,601.96 for “ extra work done on the estimate of the engineers.” The circumstances under which the extra work was done, are as follows: On February 17th, 1870, the canal commissioner of the western division presented to the canal board a communication from the resident engineer, recommending a change in the spans of a certain bridge opposite the western end of the weigh-lock, which work involved the taking down and rebuilding the piers of the bridge. The items of the proposed work and the estimated prices were submitted by the engineer; the total estimated price was

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$1,000. Some items of the work were omitted in the estimate ; the contract did not contain any prices for the kind of work necessary to make this change. Upon the presentation of the communication and estimate on February 17th, 1870, the canal board authorized this additional work i£ to be done and paid for in accordance with the recommendation of the resident engineer.” A draft was drawn upon the relator by the canal commissioners, payable to the order of relator for the balance so found due. The auditor refused to allow any greater sum for bailing and draining than that provided for in the contract, on the ground that the action of the legislature in increasing the price of that item was void — and he refused to pay the sum of $1,601.96 for extra work—first, on the ground that the extra work had not been let to the lowest bidder; and, secondly, because' the outside price authorized by the canal board was only $1,000.

The relator applied for a mandamus requiring defendant to draw his warrant upon the treasurer for the amount of the draft.

R. W. Peckham, Jr., for the appellants.

It was not necessary that chapter 767, Laws of 1870, should receive the assent of two-thirds of both houses of the legislature. (Const., art. I, § 9, art. Ill, § 16; Morris v. People, 3 Den., 381 , 399; Munsell v. Lewis, 2 id., 224, 226.) What facts appear in the certificates of the officers of both houses, as to the number present when the bill was passed, is for the court to decide upon the inspection of the originals on file in the secretary of state’s office. (De Brow v. People, 1 Den., 9 ; Purdy v. People, 4 Hill, 384 , 394, 404; People v. Suprs., etc., 8 N. Y., 317 , 329.) Such certificates furnish presumptive evidence only. (Chap. 253, Laws of 1847, §§ 1, 2; 3 R. S. [Edms.’ ed.), 59; Warmer v. Beers, 23 Wend., 103 , 106; People v. Devlin, 33 N. Y., 269 ,279.) The journals of each house of the legislature are in the nature of records, and may be produced on the argument in the appellate court, even when not referred to in the court below. (Rockwell v. Mer

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win, 45 N. Y., 166 , 168; 2 Abb. Ct. Apps. Decisions, 88.) Legislative acts are presumed to be valid, unless there is a substantial departure from the organic law. (People v. Flagg, 46 N. Y., 401 ; People v. Briggs, 50 id., 553; Town of Guilford v. Suprs., 13 id., 143.) To warrant a court in declaring an act of the legislature unconstitutional, a case must be presented in which there can be no rational doubt. (Clark v. City of Rochester, 24 Barb., 446 ; People v. Suprs., 27 id., 575 ; People v. Fisher, 24 Wend., 215 ; Benson v. Mayor, 24 Barb., 248 ; People v. Suprs. of Orange, 17 N. Y., 235 , 241.) The question whether the power of the legislature was discreetly or properly exercised is not a judicial one. (Beekman v. S. and Sch. R. R. Co., 3 Paige, 45, 73 ; Varíck v. Smith, 5 id., 137; People v. Smith, 21 N. Y., 595 ; Litchfield v. Vernon, 41 id., 123, 134; In re R. and S. R. R. Co. v. Davis, 43 id., 137,142; People v. Flagg, 46 id., 401; Brooklyn Pk. Comrs. v. Armstrong, 45 id., 234.) The legislature had power to raise the prices in the contract. (Quick v. Stuyvesant, 2 Paige, 84; Dubois v. Canal Co., 4 Wend., 285 ; Allanson v. City of Albany, 43 Barb., 33 ; Stewart v. Ketaltas, 36 N. Y.; Jones v. Judd, 4 id., 412.) The State has a right to recognize such obligations. (Town of Guilford v. Suprs., 13 N. Y., 143 , 149; Coster v. Mayor, 43 id., 407, 408; People v. Suprs., 17 id., 235, 241; 7 Alb. L. J., 192.)

Fra/ncis C. Barlow, Attorney-G-eneral, for the respondent.

Every law should be so construed as not to elude its force. (Smith’s Com. on Const, [ed. of 1848], § 277, p. 422, § 283, p. 430 ; People v. Draper, 15 N. Y., 532 -543, 544.) What is implied in a statute is as much a part of it as what is expressed. (U. S. v. Babbitt, 1 Black, 61 ; Gelpeke v. Dubuque, 1 Wall., 221 ; Field v. People, 3 Ill. [2 Scam.] ; Dart. Col. Case, 4 Wheat., 644 .) Existing laws must be considered in ascertaining the meaning of a constitutional amendment. (P eople v. Potter, 47 N. Y., 375 .) The legislature "had no right to raise the contract price. (People ex rel. Sch.

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Ob. v. Allen, 42 N. Y., 404 , 412; People v. Bd. of Education, 13 Barb., 411 ; People v. Dinsmore, Learned, J.; Powers v. Bergen, 6 N. Y., 358 , 364; Leggett v. Hunter, 19 id., 461 ; Sherman v. Mayor, 1 id., 316; Boyle v. Canal Co., 22 Pick.; Jones v. Judd, 4 N. Y., 414 .) The act increasing the price was void, because not passed by a two-thirds vote. (Const.,art. 1, §9; Smith’s Com. Const.L.,419, § 276 ; 418, et seq., § 275, et seq. ; 421,422, § 277; 926, § 813; 12 Mod., 613 ; 10 Coke, 58; IK. S. [5th ed.], 458, § 3.) A private or local provision is not helped by being put in a general act. (People v. Suprs. Chautauqua, 43 N. Y., 10 .)

The relator entered into a contract with the State, on the 15th day of Eovember, 1869, for making certain extraordinary improvements in the Erie canal, at and in the vicinity of the city of Rochester, at prices for different kinds of work specified in the contract, one clause of which, was: “For removing ice and snow, and for pumping, bailing and draining, including the expense of removing and constructing coffer-dams, excavating ditches and all other items of cost, caused by pumping, bailing and draining, the sum of $3,500.” On the 9th of May, 1870, after this part of the work had been substantially performed, the legislature, by a provision in a public act, required the canal commissioners to change this sum to $13,500, thereby adding $10,000 to the sum named in the contract. In the final estimate of .the engineer this sum was included, and the canal commissioner gave a draft upon the auditor for the balance due. The latter officer, upon the advice of the attorney-general, refused to pay the draft, upon the ground that the act giving the additional compensation was unconstitutional and void.

The provision of the Constitution which it is claimed is violated by this act of the legislature, is a clause contained in the amendment adopted in 1854, providing for borrowing money and completing the enlargement of certain canals in the State, which is as follows: “All contracts for work or

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materials on any canal shall he made with the person who shall offer to do or provide the same at the lowest price, with adequate security for their performance.” The ground is taken, that this provision not only requires the contracts to be let to the lowest bidder, but by necessary implication requires that the work shall be done and paid for at the prices named in such bids, and that it is not competent for the legislature, either during the progress of such work or after its completion, to increase the prices or in any form to allow to the contractors additional or extra compensation for doing the work.

We have carefully examined the question and considered the elaborate argument of the attorney-general, as well as the views contained in the opinions of the learned judges at Special and General Terms, and we are satisfied that the views urged on behalf of the defendant proceed upon a misapprehension of the true object and purpose, and a misconstruction of the language of this constitutional clause. In the first place, the language is clear and explicit and relates solely to the subject of awarding contracts upon competitive bidding, and requires such contracts to be made with the lowest bidder. It does not profess to deal with the contracts after they are made, nor to restrain or interfere with the power of the legislature over them. Beyond requiring that contracts shall be made with the lowest bidder, and that adequate security shall be taken for their performance, there is nothing in the clause indicating a purpose to deprive the legislature of any power which it had previously exercised or then possessed over the subject. To interpolate the words that, in addition to making contracts with the lowest bidder, the work shall be done and paid for at those prices only, would be unwarrantable upon any principle of construction. This clause secures to the State a contract at the lowest prices bid, with security for its performance and the power of enforcing it against the contractor and the sureties; but whether it will do so, or whether, upon considera-' tions of public policy, or of equity or of interest, it will

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modify it or make further allowances, by way of increasing prices or otherwise, is a power which has always resided in the legislature, and which the clause in question was not designed to, and, in its language, does not interfere with. The clause does not require all work to be let by contract, but only that all contracts by bidding shall be made with the lowest bidder; and the attorney-general conceded, upon the argument, that it was competent for the legislature to authorize the performance of all work, whether of construction or repairs, without contract, and through its own officers and agents, and that, when so done, such officers and agents might purchase materials and hire labor by contract or otherwise without violating this provision of the Constitution. This may be the most expensive way of performing public work, and is quite as liable as any other to lead to fraud and peculation; and the fact that the legislature is not restrained from doing the work in this manner furnishes a strong inference that the clause in question was not intended to prescribe the mode of doing work, nor beyond the security which the contracts afford, if public lettings are adopted to limit the actual cost of the work. Ho constitutional provision can prevent a failure, on the part of the contractor, to perform his contract nor his abandonment of it; and it is conceded that the legislature may cancel or authorize contracts to be canceled. This concession yields the whole argument. If, as is claimed, the provision requiring a contract to be made with the lowest bidder prevents the legislature, with the consent of the contractor, from modifying its terms as to price, or from making any additional allowance for work done, it is because its provisions become fixed by constitutional mandate, and, if so, it cannot be abrogated, nor those bound by its provisions released or discharged. The power to cancel and destroy is greater than the power to change and alter; and where the former is conceded, the latter must exist also upon the principle that the less is included in the greater. Where the language of a Constitution is plain there is no occasion for construction, and

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there is no possible meaning to be given to the words of this clause which extend beyond what they import, viz., the mode of awarding and making contracts at public lettings.

But, aside from this consideration, a reference to the circumstances existing at the time of its adoption shows clearly that it was intended to be confined to this subject only. It is elementary that “ the best and surest mode of expounding an instrument is by referring to the time when and circumstances under which it was made.” (Smith’s Const. Com., § 512.) Prior to this amendment, contracts for public work had always been made by a contracting board composed generally of the canal commissioners. The lowest bidder principle had never been adopted and adhered to in letting contracts. Besides price, other considerations, such as the capacity and responsibility of those offering to perform the work, were regarded, and contracts were awarded upon" such bids and to such persons as were deemed most advantageous to the State. This practice necessarily invested the contracting'board with a considerable discretion in awarding contracts, and gave the opportunity to indulge in personal or political favoritism; and yet so well and honestly had this duty been performed, that the Erie and Champlain canals and all the lateral canals were constructed, and the enlargement of the Erie and other canals commenced without any change in the law or practice on the subject. In 1851, the so-called "nine millions bill ” was passed, which provided for borrowing $9,000,000 for the immediate completion of the enlargement of the Erie and other canals specified in the act. The act also provided that contracts were to be executed on the part of the State by the canal commissioners, state engineer and division engineer, upon each division, and gave certain supervisory power as to terms and manner to the canal board. Under this act, the whole work was advertised, and a single letting held in the city of Albany, which attracted the attention of the people throughout the State, and resulted in wide-spread dissatisfaction. The propriety of adopting the lowest bidder principle was extensively discussed, and a distinct proposition

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to that effect was defeated in the canal board. After a long and exciting contest, the contracts were finally awarded by the contracting board in disregard of that principle. Upon the assembling of the legislature of 1852, a joint committee . of both houses was appointed to investigate the action of the officers connected with the letting. A majority of the committee reported in favor of sustaining the award of contracts which had been made. The notoriety and exciting character of this letting may be inferred from a single paragraph of the report: “From all parts of the State; from other States; from all walks of life; from every profession, pursuit and trade; from every division and subdivision of political sects, there swarmed upon the capítol a legion of applicants, all anxious and importunate for a participation in the anticipated profits of some share in this improvement, the last for many years, at least, to be obtained upon the public works of the State. The expectations of all ran high.” The committee state, that for the 300 contracts to be let, there were 3,000 bidders, and in taking evidence they inquired as to the reason for and against the lowest bidder principle. The act was declared unconstitutional and void by the Court of Appeals, during that year, and the contracts fell with it. From these historical facts, it is apparent that the whole subject of letting contracts was prominently before the public, and that the discretionary power theretofore exercised by the letting board, in awarding contracts, was the subject of public discussion and criticism, caused by the unprecedented letting of 1851, and the manner in which the contracts were permitted by the law to be and were, in fact, awarded. With this subject fresh in the public mind, the legislature of 1853 entered upon the task of proposing a constitutional amendment to secure the enlargement; and it is proper to refer to the proceedings of that body when the clause in question was incorporated in the amendment. This clause was inserted by the Senate, April sixth, on the motion of Mr. Taber, and was at 'first adopted with express provisions prohibiting the releasing of contracts and the awarding of extra compensa

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tion. Upon the same day, Mr. Vanderbilt, who had introduced the resolution to amend the Constitution, moved to strike out the amendment of Mr. Taber, when Mr. Cooley moved to modify the motion by striking out the words “ which im, no event shall be released,” and the words “ and no extra compensation shall, on a/ny accownt, be allowed to any such contractor.” In advocating the amendment, the mover insisted that the provision requiring contracts to be made with the lowest bidder should be retained, while the subject of releasing the contractors and allowing extra compensation should be left to the judgment of the legislature. The amendment was adopted, and we are to presume upon an acquiescence in these views. There was a slight alteration afterward made, but not essentially changing it. These proceedings indicate that the precise question involved was considered by the senate in proposing the amendment, and upon such consideration it was determined to confine the clause to awarding and making contracts, and to leave the power over the subject of further allowances where it had always been— with the legislature; and they show also that the legislature understood the import of the language used. The business upon which the State was about to enter was not new. It had been engaged in constructing, repairing and managing canals since 1818, and the people, in ratifying the amendment, are presumed to have done so with an intelligent understanding of the terms employed.

Every year, from 1853 to the present time, the legislature has passed acts of a character similar to the one in question, which have received the approval of the executive, and been acted upon by State officers without challenge, so that for nearly twenty years, through all the changes of public officers, a practical construction has been given to the clause in question in accordance with the views here indicated. We refer to a few of the many acts granting extra compensation, etc., for the purpose of showing the uniform practice of the legislature on this subject: Laws of 1855, chapter 418; 1856, chapter 193; 1857, chapter 343; 1858, chapter 252; 1859,

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chapter 300; 1860, chapter 520; 1861, chapter 271; 1862, chapter 164; 1863, chapter 394; 1864, chapter 252; 1865, chapter 500; 1866, chapter 902; 1867, chapter 900; 1868, chapter 494; 1869, chapter 783; 1870, chapter 580; 1871, chapter 586.

The practical construction of the clause in question 'by the legislature, commencing with the adoption of the amendment of 1853 and continued to the present time, which has been acquiesced in and acted upon by the executive and administrative departments of the government, and which, so far as we know, has never before been questioned, is entitled to great, and we think controlling, weight in its interpretation. It has almost the force of a judicial exposition (Story on Const., § 408), and, unless such legislation and practice is manifestly in violation of the words used, the greatest weight should be given to it in construing them. (Cooley Const. Lim., 67, and cases cited.)

The clause is as binding upon the legislature as upon other departments of government; but binding only upon the subject upon which it treats, the awarding and making of contracts, and not upon the other subject of managing and modifying the contracts, or making further allowances as the exigencies of the case may require. The two things are entirely different and distinct, and the power to deal with them has always been vested in different officers and bodies. The legislature has always retained the power over the latter, except that prior to 1849 it was conferred, to a limited extent, upon the canal board, while the former has always been exercised by a subordinate board or officers. We have, then, 1. The language carefully restricted to awarding and making contracts. 2. A practice of awarding contracts in disregard of the lowest bidder principle, which was felt to be an evil by the result of an extensive and exciting public letting just prior to the adoption of the amendment, which evil was aimed at by words apt and fitting for that' purpose, but inappropriate and insufficient to restrict the power of the legislature in any other respect. 3. The expressed intention

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of the legislature which proposed the amendment to confine it to the subject of awarding contracts. 4. The uniform action of the legislature and of the executive department of the government, since its adoption, in accordance with and corroborative of the same construction. With these elements in favor bf a particular construction of the Constitution, it would be unprecedented for any court to change it.

It does not aid the argument on-behalf of the defendant, if it is conceded that the clause ought to be as it is claimed to be. The language of a Constitution cannot be extended beyond the scope of its terms because the enlarged construction would be desirable or convenient. ( 49 N. Y., 280 .) It was deemed safe, in 1853, to leave the power with the legislature. If evils have since been developed requiring further restriction, it must be done by other than judicial authority. It is said that if the legislature may increase the prices, the design of the provision, that contracts shall be awarded to the lowest bidder, is defeated. This is a mistake. The argument is founded upon the erroneous idea that the awarding of contracts operates beyond the act and upon the management afterward. As we have seen, the clause was aimed mainly at the evil of favoritism in giving out contracts. It is urged that this object is too insignificant to warrant the supposition that the people would have amended the Constitution to accomplish it. The clause in question was regarded as subordinate in importance to the main purpose of the amendment, and, beyond the legislature, probably received no special attention. The amendment would, probably, have been adopted, with this clause in or out. But it is unsafe to pass judgment upon the importance of a particular amendment, from a stand-point twenty years distant, and after the occurrences which gave rise to it have faded from memory, and a whole generation has passed away. It was then deemed of great importance to remedy the evil of awarding contracts to personal and political favorites, and to prevent its continuance in constructing the great work for which the amendment provided. A want of present necessity for the restric

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tion, if it existed, would not change the construction; but in a State with such extensive public works, the rule prescribed cannot be said to be either improper or unnecessary.

It is also urged ■ that the legislature may do wrong, and many cases are supposed in which that body might exercise the power of increasing prices or making extra allowances, to the great injury of the State. This argument proves too much. If a wrong exercise of power proves a want of power, it may be that the legislature would he stripped of all power. It must he borne in mind that all legislative power has been granted by the Constitution to the Senate and Assembly, and their acts are to be held valid unless restrained by some provision of the instrument. Courts cannot deny the power because it has been or may be improperly used. The legislature possesses almost unlimited power of taxation, and it may appropriate public money for improper purposes, or give it away by the requisite vote ; yet we cannot deny the power, however unwisely used. The duty of courts ends with determining the question of power. The clause in question was aimed at a particular evil, and has accomplished and continues to accomplish its object; but it does not restrict or relate to the power exercised by the legislature in passing the act in question for the relief of the relator.

There is another ground upon which the action of the legislature may be sustained, and that is upon its conceded power to discharge legal or equitable obligations of the State, and we agree with Parker, J., in his dissenting opinion at the General Term, that the exercise of this power is not reviewable by the courts. We are bound to presume that sufficient grounds existed, if they could in any case exist. It is not necessary to specify the grounds in the act, or to prove them in court. It bélongs to those who allege the invalidity of an act of the legislature to show it affirmatively. The want of power qfflyd appear. Every presumption is in favor of the validity oifan act of the legislature. We cannot know whether the relator had an equitable or legal claim against the State for this allowance or not. There may have

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been a material mistake of facts in entering into the contract, or some mistake or misrepresentation in regard to the work, or some unforeseen occurrence upon which a claim might be predicated. Nor is the legislature restricted, in granting relief, to such grounds as would be requisite to maintain an action against an individual in courts of justice. Many other considerations may and often should be considered in the dealings of a State with its citizens. ( 13 N. Y., 149 ; 4 id., 412.)

It is unnecessary to consider whether this allowance could be sustained as a gift or donation. The legislature possesses the power to donate public funds to private use, but it requires a two-third vote; and as we think the act valid upon other grounds, we refrain from considering this question.

There was also an objection to an item of about $1,600, contained in the final estimate for extra work, in consequence of a change of plan by the canal board. It is urged that, as there were no prices specified in the contract for the kind of work required by the change of plan, it was, in fact, done by a contract outside of the contract for the principal work.

By the principal contract the relator agreed “ to perform all the work contracted for, as specified in this contract; but any change in the form, dimensions, location or manner of doing the work, ordered by the canal commissioners and division engineer, in accordance with section 9 of chapter 377 of Laws of 1850, shall be made as directed; ” and then provides that if the quantities are increased or diminished by such alteration, the contractor shall do the same at the rates specified in the contract, without making any claim for damages in consequence thereof. The statute referred to (chapter 377 of the Laws of 1850) requires that, before any alteration is made in work under contract which shall increase the expense, a statement in writing shall be submitted to the canal board, setting forth the objects to be attained and the expense thereof; and the consent of the board shall be obtained. These formalities were complied with, and the canal board consented to the change. If the rates for the changed work are fixed

Dissent

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in the contract, they are to govern; if not (as is claimed in this case), then what ? As the contractor had agreed to do the work as directed, and there was no price fixed in the contract, one of two things must follow—either the contractor was entitled to pay, as upon a quantum meruit, or. he was hound to do it at such prices as the State might determine. In either case the doing of the work was a contingency provided for in the contract. But if not, it must be regarded as work don.e by the State. The engineer and canal board fixed the prices, and, if not provided for in the contract, they might have employed any other person besides the contractor to do it. Nothing appears in the papers showing that any outside contract was made for this specific work. The General Term presumed it without any fact to found it upon. I think it was included in the original contract.

The objection to the excess over the estimate for the work done under the change of plan is not tenable. Such excess, I infer from the final estimate, was for work done under the change of plan, but not included in the estimate of the engineer' presented to the canal board. The canal board had assented to a change of plan, with an estimate of expense which turned out to' be something less than it cost, by reason of the omission of some items of work which the change made necessary. There is nothing in the statute or in the contract limiting the payment for such work to the precise amount estimated. If the prices for this work had been specified in the contract, but the quantities had exceeded the estimate, there could have been no question but that the contractor would have been entitled to pay for the whole amount actually done. It is very rare that an estimate of quantities is entirely accurate. No question is made but that the work was done by the relator in pursuance of the contract, and it has passed the supervision of the engineers and canal commissioner, and there is no valid reason why payment should not be made.

The order of the Special and General Terms should be reversed, and the motion for mandamus granted, with costs.

(dissenting). Two questions are presented for determination in this case. One, whether the second clause upon page 1903, volume 2, Laws of 1870, is a valid law, or in conflict with section 3, article 7 of the State Constitution, and therefore void. The other, whether a contract entered into by the State officers for the performance of work upoa any of the canals, the State agreeing to pay the contractor therefor the price fixed by an engineer as a just and reasonable compensation therefor, is a legal contract, and as such binding upon the State.

The clause in question is as follows: “ The canal commissioners are hereby required to change the sum named for removing ice and snow, and for pumping, bailing, draining, removing coffer-dams in existing contract, for deepening Erie canal from Lyall street to first lock east of Rochester, including cutting down Genesee River aqueduct, and constructing vertical wall from same to Griffith, and improving entrance to Rochester weigh-lock, to $13,500, instead of the price named in said contract.” The validity of this clause is challenged as in contravention of section 3, article 7 of the Constitution, as amended in 1854, which provides that all contracts for work and materials on any canal shall be made with the person who shall offer to do or provide the same at the lowest price, with adequate security for their performance. A recital of some facts shown by the case will present this question more clearly. In November, 1869, the relator entered into a contract with the State • for doing the work specified in the clause in question for the sum of $3,500, together with other work at prices specified in the contract. This contract was awarded to the relator, he being the lowest bidder therefor. At the ensuing session of the legislature, and before the completion of the contract, the above clause was passed in an act entitled “An act to authorize a tax of one mill per dollar of the valuation of the year 1870, for construction of new work upon and extraordinary repairs of the canals of this State.”

The relator contracted to do the work at the prices spe

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cified in the contract, and had given adequate security to the State for its performance. It. will thus be seen that the question is whether section 3, article 7 of the Constitution, requires that work done upon the canals, upon contract, shall be contracted for at the lowest prices to be procured by honest and fair competition among contractors, and, if performed by the party obtaining the contract, done and paid for at the prices so fixed, or whether that requirement is fully satisfied by entering into such a contract by the proper officers of the State, leaving power in the legislature directly thereafter to nearly quadruple such prices, as was attempted to be done in the present ease. The mere statement of this question would seem sufficient to furnish the proper answer, when the clause in question is examined in connection thérewith. If the legislature has the power to increase the prices specified in the contract, and exercises it, a valid contract for doing work upon the canal is made, not at the lowest price fixed by competition, but at prices fixed by the legislature without any competition whatever. This, when so changed, is not the original contract entered into, but the substitution of a new contract therefor; and thus the State becomes bound by a contract for doing work upon the canal not made with the lowest bidder at the prices bid, giving adequate security for the performance, which violates the express language of the Constitution. If the legislature, by a mandatory statute, can authorize or compel the canal commissioners to increase the prices for doing work in an existing contract, entered into as required by the Constitution, I do not see why they might not, by a .like statute, compel them to make a contract with an individual for doing work upon the terms specified in the act, and thus the constitutional requirement would be entirely evaded. Indeed, I understand the position of the appellants to be, that the clause has no further effect than to require the executive officers of the State to make the original contract, when not otherwise directed by statute, as thereby required. At all events, that when once so contracted for, the entire requirement has been satisfied, although no work is done and paid for

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according to the .terms of the contract; and that the legislature may at once interfere and direct, or itself substantially make? such subsequent contracts- for doing the work upon such terms as it sees fit. If this be so, the clause, it will be readily seen, amounts substantially to nothing. If it fails to secure performance of the work contracted for, at prices fixed by competition, if it secures nothing but the mere form of letting at such prices, it is the most inefficient constitutional provision ever adopted by this or any other government; and yet it is only this, unless it secures performance of the work at prices so fixed. Unless it was intended to secure this result, it can hardly be supposed that two successive legislatures would pass a resolution proposing the amendment containing this clause, and surely the people never would have voted for its adoption, understanding that it amounted to nothing more than to secure a formal making of a contract, while, as in the present case, if the statute is valid, the prices paid would be quadrupled by the legislature.

An argument is sought to be deduced from tne residue of the proposed amendment, containing the clause in question, for the construction contended for by the appellants, but I think the tendency of this is to show the contrary. Its purpose was to authorize the creation of a large debt against the State for the immediate- enlargement of the Erie canal. This was a question upon which the people were divided. One inducement for the insertion of the clause in question was to satisfy the people that if the debt was sanctioned the proceeds would be honestly and fairly applied to that object, instead of being largely diverted to enriching politicians and-lobbyists,, either with'the canal board or legislature, and thereby induce the- people to vote for the amendment. If the latter was- achieved by a proposition which did not secure the former, but only the mere making of contracts, never to be performed when beneficial to the State, dust was most successfully thrown in the eyes of the people, and the authors of the scheme are entitled to admira

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tion for their ingenuity, though this can hardly.be said as to their honesty.

Some citations are made from the journals of the proceedings of the legislature, while the subject was under consideration, to show the intention in proposing the amendment in question. These would be entitled to consideration in construing a law made by that body, but amendments to the Constitution are made by the people. It is their act. The legislature merely makes a proposition for submission to the electors of the State, and the latter adopt or reject it as they deem proper. In their action they look at the language of the proposition, not one in thousands ever having seen or known or had the opportunity of knowing anything of the legislative journals. The language should-therefore be construed in accordance with its fair meaning, irrespective of anything upon the legislative journals, without any knowledge of which the people acted.

Again, it is insisted that the legislature have, for a long time, acted upon the construction claimed by the appellants, and that the executive officers of the State, in pursuance of its mandate, have acquiesced in such construction. This is true to an alarming extent, and by such means vast sums have been taken from the treasury and pocketed by individuals, to the impoverishing of the tax-payers. This argument, in a government like that of Great Britain, where the Constitution consists entirely of precedents and usages, would be conclusive; but in one where the paramount law consists of a written Constitution, solemnly enacted by the people, for the purpose of organizing the departments of government, defining and limiting their respective powers, like that of this State, it is entitled to but little weight. Here, whenever the validity of a legislative act is challenged as unauthorized or prohibited by the Constitution, reference must be had to the instrument itself to determine the question, and, if found unauthorized by that, it cannot be upheld by the previous wrongful exercise of such power for any length of time. •

Again j it is said that the construction contended for

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will prevent the doing of work by the State through the agency of its officers, by employing men by the day, or otherwise, to perform it, and paying them a stipulated price for their labor. Not at all. The amendment was adopted in reference to the well-known practice of the State, of doing a portion of the work upon the canals, and procuring a part of the materials used, by the direct employment of men and purchase of materials by the agency of its officers, and entering into contracts for other work and materials with individuals, by which the contractors had the chance of making profits from the labor of others, and upon the materials supplied by them. The amendment clearly applies to the latter, leaving the system of repairs by superintendents, etc., to be done as before if deemed expedient. This is not work done under contract, within the meaning of the amendment.

It is said that as the amendment does not prohibit the legislature from increasing the prices in contracts made pursuant to its requirements, it may do it under the general grant of legislative power. But it is clear that when the Constitution prohibits anything, or ordains the doing of it in a specified mode, it divests the legislature of power to enact any law in conflict therewith, the same as any other department of the government from so acting; and so this court has repeatedly held. (The People v. Allen, 42 N. Y., 404 ; The People v. Albertson, decided by this court, in November, 1873, not reported).^[1]

The clause of the statute in question requires the canal commissioners to increase the price, etc., and when this is done, if valid, the State becomes bound by a contract for doing work upon the canal, not made with the lowest bidder at the lowest prices fixed by competition; and thus the State is bound by a contract made in direct conflict with the Constitution. The legislature has no more power to do this, than any other department of the government.

It is further said that the action of the contracting board,

* 55 N. Y., 50 .

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in regard to the letting of a large amount of work upon the canals, in 1851, under a law subsequently declared unconstitutional by this court, excited the people of the State and caused the adoption of the amendment in question, and that this would be obviated by requiring that board and other executive officers of the State to' enter into such contracts with the lowest bidders at the lowest prices. It is true that this was one of the causes of the adoption of the amendment; but to suppose that the people would gravely amend their Constitution so as to protect themselves from the efforts of the men who then surrounded the contracting board, from that board, only, and leave themselves exposed to the influence of the same men prompted by the same motives, with the legislature, is imputing to them a degree of simplicity from which I think they are wholly free. It is a fundamental rule of construction, to be applied in all its force to restrictions upon legislative power, to adopt that which will preserve its force, and not render it vain and illusory. (Smith’s Com,, ed. 1848, § 283.) Applying this principle to the present case, we find that the Constitution ordains that all contracts for work, etc., on any canal, shall be made with the person who shall offer to do or provide the same at the lowest price, with adequate security. The above principle manifestly requires that no such contracts shall be made by the State in any other way, and to hold the legislature not bound by this, would be, I think, absurd.

But the inquiry is made as to what shall be done in case a party has made a contract for doing work and neglects or refuses to perform it. The answer is plain. The State must either procure the work to be done through the agency of its officers, or make a new contract therefor with some other party, pursuant to the amendment. The defaulting contractor and his security will be liable to the State for the damages caused by the default, which should or should not be enforced by the State, determined by an upright, intelligent exercise of discretion by its officers. Adopt this course, and the heavy burden of taxation caused by the canals will be at once greatly

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diminished. The practice of making contracts with the State for performing work upon the canals, and then going to the legislature for an increase of prices while the work is in progress, or for extra allowance after it is done, will he ended in future, as it should have been at once by the adoption of the amendment.

It is insisted by the counsel for the relator that the legislature have the power to adjust and provide for the payment of claims against the State, and that it should be assumed that the increase of price was made on account of some claim of the relator against the State. The brief answer to this is that the clause does not provide that the acceptance of the money by the relator shall operate as a satisfaction of any claim of his, if he had any against the State, and' such acceptance would not, therefore, in any way affect any of his claims. If he had any such, they will doubtless be speedily heard from by those authorized to adjust them.

The counsel further insists that the legislature may not only provide for such claims against the State as could be enforced in an action at law or proceeding inequity, in case the State was suable by an individual, but may go further and provide for others founded only in gratitude or charity, and cites the Town of Guilford v. The Supervisors of Chenango Co. ( 13 N. Y., 143 ) in support of the position. It is manifest that satisfying a claim, by the legislature, having no validity either legal or equitable, but founded only in gratitude or charity, is nothing but a gift of the public money to an individual. This requires no argument. This is the appropriation of the public money to an individual, and therefore a private act, and, as such, void by the provisions of section 16, article 3 of the Constitution, included in an act embracing more than one subject. It is therefore unnecessary to determine whether the legislature can be grateful or charitable at the expense of the people, or whether these virtues must be exercised by the people for themselves.

That the second contract, made with the relator for doing the additional work at the price fixed by the engineer, con

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travenes the Constitution and is- therefore void, is too clear for discussion. ~

Munsell v. Lewis ( 2 Denio, 224 ), cited by counsel, arose and was decided prior to the adoption of the amendment, and has no bearing upon the resent case. The Special and General Terms of the Supreme Court were right in holding the clause of the statute in question void, and the judgment should be affirmed.

All concur with Andrews, J., except Grover, J., dissenting.

Order reversed, and motion for mandamus granted.