Hyperlawhypertext legal database McSpedon v. Mayor of New York 20 N.Y. Super. Ct. 601

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McSpedon v. Mayor of New York

20 N.Y. Super. Ct. 601 7 Bosw. 601 Court N.Y. Super. Ct. Decision date 1861-02-23 English

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Thomas McSpedon and Charles W. Baker, Plaintiffs and Appellants v. The Mayor, Aldermen and Commonalty of the City of New York, Defendants and Respondents.

Headnote

1. A contract for printing and binding for the corporation of the city of New York fifteen hundred copies of the “ City Charters, with Kent’s Notes,” at two dollars for each copy, is within § 12 of chap. 217 of the Laws of 1853 (p. 410), and if not made as that section requires, is void.
2. The facts that such a contract is made by the clerk of the common council, under the authority of a resolution passed by that body, and the printing is done, and the copies are furnished to and accepted by the common council, do not create any legal obligation upon the corporation to pay either the contract price, or what the copies so furnished are reasonably worth.
(Before Boswobth, Ch. J., and Woodruff and White, J. J.)
Heard November 7, 1860,
decided February 23, 1861.
Appeal by the plaintiffs, Thomas McSpedon and Charles W. Baker, from a -judgment in favor of the defendants, The Mayor, Aldermen and Commonalty of the City of New York, rendered on a trial had in December, 1851, before Mr. Justice Slo'sson, without a jury.
The action is brought to recover $3,000, with interest from January 1, 1855, for printing and binding fifteen hun
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dred copies of a book known as “ The City Charters, with Kent’s Notes.”
The common council of the corporation of the city of New York, by resolution approved December .16, 1853, authorized and directed its clerk to procure this work to-be done, and he contracted with the plaintiffs to do it. .The plaintiffs did the work, and delivered -the copies about the 1st of January, 1854.
The common council, by a resolution of the 18th of June, 1855, directed the comptroller of the city to pay the bill, which the clerk of the common council had before then certified to be correct, at $3,000. The comptroller refused.
The complaint states these facts, and contains common counts for doing this work (as they allege) at the defendants’ request.
The answer admits the passage of the resolutions, and sets forth the 12th section of chapter 217 of the Laws of 1853 (Laws of 1853, p. 410), and avers that the said resolutions are a violation of that section, and that the contract with the plaintiffs is void, and that the defendants are not liable for the said work.
It was proved on the trial that, on the 3d of July, 1848, a valid contract, made in the mode prescribed by law, was entered into between the plaintiff’s and defendants, for printing journal, proceedings and documents of the two boards, and binding the same, at prices mentioned in a specification thereto annexed. That contract, by its terms, expired in one year from its date.
Before this contract expired the charter of 1849 was passed (Laws of 1849, p. 278), and on the 30th of June, 1849, the ordinance organizing the departments of the municipal government to carry that charter into effect was passed.
When the contract of July 3, 1848,-expired, no ordinance had been passed conferring on any department authority to contract for the public printing for a definite period. By the action of the common council and the officers of
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the city government, the provisions of the contract of July 3, 1848, was continued until the common council should otherwise determine.
All the printing of the common council was done hy the plaintiffs, at .the rates specified in the contract of July 3, 1848, and paid for by the comptroller.
Thus the matter stood until the resolution of December 16, 1853, was passed.
On the 13th of August, 1854, a preamble and resolution were presented in the board of councilmen to the effect that, said board “is entirely satisfied with the existing contract with Messrs. McSpedon & Baker, in printing for the legislative branch of the corporation,” * *
and they recommended “that the same be continued as heretofore,” which was adopted by, a vote of 31 to 22.
The court gave judgment for the defendants. Exceptions to the decision of the court were duly filed. From the aforesaid judgment, the present appeal is taken.
J. W. Edmonds, for Appellants.
I. The contract under which the work was performed was a valid one, and was a compliance with the statute. (Laws of 1849, 278, §§ 1, 9 and 23.)
II. The work in question belonged to the legislative department, and like all other printing of proceedings and documents for the use of the legislative department, it could be performed without a special contract therefor. (Christopher v. Mayor, &c. of New York, 13 Barb. 567 ; Peterson v. Mayor, &c. of Mew York, 17 N. Y. R. 454.)
III. Even if the original contract for performing the • work was void as against the statute, the work having been done by the plaintiffs, and having been accepted and enjoyed by the defendants, the defendants were liable to pay for the same on a quantum meruit. (Angel & Ames on Corp. § 238 ; Bank of Columbia v. Patterson, 7 Cranch, 306 ; Randall v. Van Vechten, 19 J. R. 65 ; Dunn v. St. Andrew's Ch. 14 Id. 118 ; Banforth v. Schoharie Turn. Co. 12 Id. 231.)
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IY. The defendants are also liable on an express promise contained in their resolution of the-18th of June, 1855. . '
II. R. Anderson, for Respondents.
I. The resolution of the common council of December 16, 1853, is void, and creates no obligation as against the city to pay for the services contracted to be rendered by McSpedon & Baker.
1st. The making of the (alleged contract was an executive, and not a legislative act. The common council, therefore, could not legally make it.
If authorized by the common council, the contract could only be made by the appropriate head of department. (Charter of 1849, §9; Ordinance organizing the departments, May 30, 1849, § 243; Ransom v. The Mayor, 4 Ab. Pr. R. 342.)
2d. The resolution of the 16th December, 1853, is void, also, because it is in express violation of the 12th section 'of the charter of 1853. This section took away from the common council all discretion as to work to be done or supplies to be furnished for the corporation, which involved greater expenditure than $250. In such cases the common council had no authority whatsoever to order the work done otherwise than by contract founded on sealed bids, or on proposals made in compliance with public notice for the full period of ten days. (Charter of 1853, § 12.)
II. The work in question was capable of being done by contract. It was a proper subject of competition by bidders, and’the object of the 12th section of the statute of 1853 was to' secure to the corporation the benefits of the contract system, which it devised.
1st. It was to print and bind a given number of a certain book' already in existence, and at a fixed price per number.
2d. It is unlike the case of professional, scientific or ' artistic labor, which derives its chief, if not its only value,
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from being performed by some particular person. (Peterson v. Mayor, &c. 17 N. Y. R. 454.)
III". The proceeding of the common council being absolutely void, ab initio, no subsequent act or assent or ratification can give it validity; and the resolution of June 18, 1855, directing the comptroller to pay the bill of McSpedon & Baker, fails, for want of original authority over the subject. (Brady v. The Mayor, &c. 2 Bosw. 173 ; Farmers’ Loan & Tr. Co. v. The Mayor, &c. 4 Bosw. 80 ; Bonesteel v. The Mayor, &c. 6 Bosw. 550 ; 22 N. Y. R. 162.)
IV. What the common council could not do itself, it could not legally depute its clerk to perform. The directions to Mr. Valentine, contained in the resolution of December 16, 1853, were unauthorized. The duties of clerk and his powers are enumerated in the charter of 1849, §§ 4 and 5.
V. The resolution of the common council of 13th of August, 1854, continuing in force the contract for printing, &c., made with McSpedon & Baker, in July, 1848, if a valid act of legislation, confers no right upon the plaintiffs to maintain this action. That contract had reference to a wholly different class of work than is embraced in the resolution of "the 16th December, 1853.
VI. “ The contractor, when he deals in a matter expressly provided for in the charter, is bound to see that the charter is complied with. If he neglects and thus chooses to take the hazard, he is a mere volunteer, and suffers only what he ought to have anticipated.” (Brady v. The Mayor, &c. 2 Bosw. 173 ; Homersham v. Wolverhampton Water Works Co. 4 Eng. L. & E. R. 426 ; Williams v. Chester R. R. Co. 5 Id. 501 ; Farmers’ Loan & Tr. Co. v. Carroll, 5 Barb. 615 .)
VII. The plaintiffs are not entitled to recover, because the claim had not been audited by the finance department. (Charter of 1849, § 11; Charter of 1853, § 13; People ex rel. Smith v. Flagg, 17 N. Y. R. 584.)
VIII. No previous appropriation to cover the expense of this contract having been made, the contract would be illegal, even if made by the proper executive officer.
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(Charter of 1849, §§ 7 and 19.) The judgment at special term should be affirmed, with costs.

—Upon the facts and the pleadings in the case, two questions are presented: First. Whether the defendants are bound by the express contract made by the common council with the plaintiffs for the work in controversy. And second. If the defendants are not bound by the original and express contract, have they, by accepting and using the books, rendered themselves liable to pay the plaintiffs what the books are reasonably worth ?

It is a settled principle that when the legislative power, from which a corporation derives its authority to act, prescribes a particular mode in which the act shall be performed, the corporation cannot lawfully perform the act in any other manner.

If not done in the manner prescribed, the act is a mere nullity—utterly void.

In the present case, the Legislature having declared, in the 12th section of' the act of 1853, that all work to be performed, and all supplies to be furnished to the corporation of the city of New York, involving an expenditure of more than $250, shall be by contract, founded on sealed bids, &c., it follows, that the contract for the work done by the plaintiffs (if it is such work as is contemplated by the 12th section of the act referred to) should have been made as prescribed in that section; and, that not having been made in that manner, it is null and void; and no action can be maintained upon it. (See Brady v. The Mayor, &c., of the City of New York, 2 Bosw. 173 , affirmed upon appeal to the Court of Appeals. 20 N. Y. R. 312.)

But the plaintiffs claim that the work, which is the subject of this action, was done, not under the employment or contract authorized by the resolution of the common council, passed on December 16, 1853, but under the old contract, made between the parties in July, 1848; which

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the plaintiffs contend was continued in full force to the time of the present transaction.

There is nothing, however, in the case to sustain this suggestion. The complaint sets up no such claim. The only contract, retainer, or employment, which the complaint alleges, or in any manner refers to, is the resolution of December 16, 1853, and the contract with, and retainer of, the plaintiffs by the defendants, “ pursuant to the said resolution.”

Again, the compensation, agreed to be given to the plaintiffs for the work, is not measured or controlled in any manner by the prices or terms of the old contract. In that contract, the payment of 46 cents per page for 250 copies is provided for; while the contract price, under the resolution of December, 1853, and set forth in the complaint, and for which judgment is demanded, is two dollars per copy; which is not only a different, but appears to be a much larger rate of compensation than that stipulated in the old contract. So that, even were the contract of 1848 in existence at the time of the employment of the plaintiffs, it manifestly was not considered by either of the parties as in any manner affecting the agreement for printing the “City Charters, &c.,” which they both evidently regarded as a new and independent undertaking. „ But the old contract had expired by its own limitation in July, 1849. And although the plaintiffs continued to print the proceedings of the common council, and to receive payment therefor as usual, yet, until August, 1854, there was nothing done that had even the semblance of an attempt to renew or revive it; and all that was done then was the passage of a resolution by the councilmen (one board only of the common council), recommending that the old contract be continued; a resolution which could have no effect whatever upon the rights or relations of the parties.

But we do not think that, after the act of 1853, the common council could, by any mere resolution, however formally passed, either make, or give vitality to, such a contract as that of July, 1848. Even before the passage

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of the act of 1853, the ordinances of the corporation required that all contracts for work and supplies, involving a certain amount of expenditure, should be made upon bids or proposals, invited by public notice; and this very contract of July, 1848, was made in that manner. We repeat, therefore, that we can see nothing in the case to warrant the suggestion that the work in question was done under that old contract.

It was also urged by the plaintiffs, as a ground for main-taining the validity of the contract made with them pursuant to the resolution of December 16, 1853, that it yras a legislative and not an executive act; that the books ordered to be printed were as necessary for the guidance and information of the members of the common council in the discharge of their legislative duties as their minutes, documents and journals, and that it was equally within their legislative discretion to order and contract respecting them, without any other restraint than their own sense of what was proper and necessary. The common council, it is true, is vested with all the legislative power of the corporation; but it is a peculiarly restricted legislative authority, and is in every respect subject to the provisions of the charter, othe fundamental law of the corporation. And when that charter requires that certain legislative or executive duties shall be performed in a particular manner, or when it declares that a certain act, which is appropriate to both the executive and legislative departments, shall be done (whenever it is done) in a particular manner, without making any exception in favor of any officer or department, ministerial, legislative or executive, then these several departments of the city government must comply, in the performance of that act, with those special requirements of the fundamental law. There are, it is true, several matters' pertaining to the city government, which have not been assigned by law, or by ordinance of the corporation, to any of the heads of executive departments, and the administration of which, therefore, remains with the common council. (See Peterson v. The Mayor, &c. 17

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N. Y. R. 454.) The erection of new public buildings when authorized by law, and the public printing are instances of this kind. But in the administration of these branches or portions of the corporate business, everything must be done (so far as the nature or character of the particular subject will permit or render it possible) as strictly in compliance with the provisions of the charter, both as it respects the thing to be done, and the mode of doing it, as if the matter was in the control or management of the head of an executive department.

We conclude, therefore, that when the work of the public printing involves the expenditure of more than $250, it should be done by contract founded on sealed bids, &c., in pursciance of the twelfth section of the act of 1853, and that this is the law, whether the printing is required for the legislative or executive departments; and that no contract or employment for the performance of the work referred to, made in any other manner than that prescribed by said twelfth section, is lawful, or valid, or of any binding force or obligation, when it involves an expenditure of more than $250.

Upon this principle, the work done by the plaintiffs, and for which this suit is brought, was work which should have been contracted for in the manner and with all the formalities prescribed in the twelfth section of the act of 1853; and as the contract for it was not made in that manner, it is null and void, and cannot be enforced against the defendants.

There only remains now to be considered the question, whether the defendants, having accepted and used the books, are bound to pay for them what they are reasonably worth, notwithstanding that the express contract under which they were furnished is null and void ?

The plaintiffs’ counsel has cited several authorities intended to sustain the affirmative of this proposition; but they all tend only to establish what has been long held as sound general doctrine, that a corporation can in ordinary cases be made liable on an implied as well as on

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an express assumpsit or promise. They do not, however, reach the case of a corporation which is deprived by statute of all capacity to contract, except in certain designated or prescribed forms. In the present instance, the defendants can make no contract or promise, express or implied, except in the manner and with all the formalities prescribed by statute. No promise, or engagement, or act of acceptance, or ratification by the officers or agents of a corporation thus incapacitated, can render it liable, or give to any one a cause of action against it. The members of the common council and other officers of the city government are but agents of the corporation, entrusted with certain powers which are to be exercised in a manner specially defined and provided. This is the extent of their authority. Anything they do beyond it is a nullity, so far as it is intended by it to bind their principal. A different doctrine would render void all attempts at legal restraint upon the conduct or acts of the defendants. If the principle could be maintained, that when an express contract, made in defiance of the restraints of the charter of the defendants, should be declared void, the party seeking to recover upon it might abandon the claim on the express undertaking, and recover upon an implied promise, on the ground that the work had been done, or the supplies furnished, no matter' how unauthorized by law the work or the supplies had been, it is obvious that the statute would be a mere nullity, and that all safeguards' against: improvidence and corruption would be overthrown. Such • a doctrine could not be tolerated. These views and the reasoning in support of them are set forth more fully in the decision of this court in the case already referred to; (Brady v. The Mayor, &c. 2 Bosw. 173 ;) and we only now re-assert them.

Fully sensible of the hardship to which an adverse decision might subject the plaintiffs, who, without recompense, have parted with their property and labor upon an illegal and void contract, we have examined this case carefully, so that nothing might escape our notice- which could tend

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to the plaintiffs’ benefit. But we can see no ground upon which this action can be sustained. Whether in any other form of proceeding the plaintiffs can recover their property or its value, may be a question. In the present action they can have no relief.

The judgment at special term must be affirmed with costs.

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