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People v. Carr

5 Silv. Sup. 302 Court Supreme Court, Third Department, General Term, English

Delivered by Boardman, J.

Contents

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p. 302
The People v. Joseph B. Carr, as Secretary, etc., et al., Contracting Board, etc.
Supreme Court, Third Department, General Term,
January, 1884.

Headnote

1. Contracting board. Contract.—There is nothing in section 211 of the Code which requires the contract for the publication of the court of appeals reports to be made with the lowest bidder. The contracting board is required to make a contract on terms the most advantageous to the public, regard being had to the proper execution of the work, etc.
2. Same. Discretion.—The said section confers upon said board a discretionary power, in place of which the general term cannot substitute its judgment and discretion.
8. Same. Power.—The contracting board, in its discretion, can embrace other conditions than those named in the law, if, in its opinion, they conduce to the public benefit, and can, by notice, indicate that such requirements will be made.
4. Same.—If the board keeps within the power and authority granted it by the statute, the contract is valid; otherwise it is not binding.
5. Same. Certiorari.—As the duties of the board are not judicial, but purely ministerial, though requiring the exercise of judgment and discretion, they cannot be reviewed by a writ of certiorari.

This certiorari was granted for the .purpose of reviewing the action of the Secretary of State, the comptroller and the state reporter as a contracting hoard in making a contract for the publication of the reports of the Court of Appeals, with Weed, Parsons & Co. The contract was made on the 13th day of December, 1883, for the term of three years under the provisions of the Code, section 211.

The defendants had jurisdiction of the subject matter of the determination made by them and now under review. Some question has been made whether their authority has been pursued in the mode required by law so as to authorize their determination, of which notice will be taken hereafter. No evidence of any kind was produced and no determination

p. 303
was made upon evidence, and hence no question can arise over the admission or rejection or weight of evidence. There remains, then, under section 2140 of the Code, the one question to be reviewed, “ whether, in making the determination, any rule of law, affecting the rights of the parties thereto, has been violated to the prejudice of the relator.” There is no relator to be prejudiced. The sole question remains, was the action of the defendants legal ?

There is nothing in the Code, section 211, requiring the contract to be made with the lowest bidder or to any particular bidder. The action of the defendants was not limited or restrained after the bids were before them. They are required to “ advertise for, receive and consider proposals for the publication of the reports.” This the defendants certify was done. They were then required to make a contract, “ on terms the most advantageous to the public, regard being had to the proper execution of the work,” etc. This the defendants by their return certify they have done. The return is conclusive. People ex rel. Sims v. Board of Fire Commissioners, 73 N. Y. 437 .

A discretionary power was given by statute to the defendants. It has been exercised by them in making this contract. What is the evidence that such discretion has been abused or that their action was illegal ? Who can review such proceedings, and how can they be reviewed ? If by this court, then its three justices are called upon to substitute their judgment and their discretion in place of those designated by law. The return of the defendants'is a complete justification upon its face of the making of the contract in question and must be taken as true.

There was no substantial departure in the notice published by defendants from the requirements of the law. The contract to be made was for the public benefit. The defendants in their discretion could embrace other conditions than those named in the law, if in their opinion they conduced to the public benefit, and hence they could by notice indicate that

p. 304
such requirements would be made. Little y. Banks, 85 N. Y. 258 .

The remarks already made indicate quite clearly that the action of the defendants was in no sense judicial, and hence is not reviewable by certiorari. The defendants were the agents of the State to make a contract. If they have kept Avithin the poAver and authority granted them by statute, the contract is valid; otherwise it is not binding. The duties discharged were purely ministerial, although requiring the exercise of judgment and discretion. In such cases a certiorari Avillnot lie. People v. Walter, 68 N. Y. 411 ; People ex rel. Kimball v. Supervisors of St. Lawrence County, 25 Hun, 131 ; People ex rel. v. Supervisors of Livingstone Co., 43 Barb. 332 ; aff’d in 34 N. Y. 516 .

We conclude, first, that there is no eAddence of a failure of duty on the part of the defendants in making the contract with Weed, Parsons & Co., and second, that such duty was not judicial but ministerial, and hence cannot be revieAved by this writ.

The Avrit of certiorari should be quashed with $50.00 costs and disbursements.

Learned, P. J., and Bockes, J., concur.

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