158 N.Y.S. 475 | N.Y. Sup. Ct. | 1916
The plaintiff brings this action to have vacated a special assessment levied against his property by the city of Gloversville for $495.40, of which $12.40 is for interest, for paving Kingsboro avenue in that city. His contention is that the proceedings of the common council of the city leading up to the levy of the assessment deviated from the city charter in such important particulars as to vitiate it.
In the spring of 1912, the common council of tire city, by resolution duly passed, determined to lay pavement on six of the city streets, including the one in question. The kind of pavement was not determined upon, different kinds being named for tire different streets in the resolutions determining to pave, and in some cases, as on Kingsboro avenue, different kinds of pavement were named in the alternative. Complaint is made against this leaving the matter of selection of pavement open in the preliminary resolution to pave, but this I think is without merit. In fact, the determination to pave was the important act, and it was both wise and prudent to leave the selection of the pavement until the cost of various suitable kinds could be learned from the bidding by contractors or otherwise. The total cost of the pavement on Kingsboro avenue was upwards of $33,000, and for all the streets paved, with sewers and curbing, approximately $77,000. In this opinion, only three of the grounds urged against the validity of the assessment made against plaintiff’s property will be considered. Numerous other reasons for vacating the assessment are given by plaintiff’s counsel, but I do not consider them of sufficient merit to impair the validity of the assessment.
“That the engineer and city clerk be directed to advertise in the official newspapers of the city and in such other ways as seem best that the bids will be received for paving and construction of storm sewers by the city clerk and will be opened at the meeting of the common council May 8, 1912.”
The provisions of the city charter required the common council of the city to advertise for bids. Their judgment and discretion was to be exercised, and not that of the engineer and clerk, as to the extent of the advertisement and the number of times it should be published in the official papers and in other papers. The charter wisely delegates this judgment and discretion to the council, and it could not be abrogated. It was wisely provided that the work was to be let to the lowest bidder after advertisement by the common council, and the extent of the advertising for bidders, that there might be no wrongdoing by irresponsible parties, was delegated to the common council, the members of which are answerable to their constituency for the faithful performance of their trust. It may well be that the notice published and the extent of the publication was as full and complete as though it had been done by the common council, yet those called upon to pay for the improvement did not have the benefit of the judgment of those charged with the duty of the publication by the statute. The test is, not that no wrong followed the mistaken acts of the council in the present case, but that it might have followed because of their deviation from the statute, designed specifically and in specific terms to protect those liable to meet the expenses of laying the pavement.
In all cases of delegated authority, where personal trust or confidence is reposed in the agent, and especially where the exercise and application of the power is made subject to this judgment or discretion, the authority is purely personal and cannot be delegated to another, unless there be a special power of substitution. Birdsall v. Clark, 73 N. Y. 73, 29 Am. Rep. 105; Lyons v. Jerome, 26 Wend. 485, 37 Am. Dec. 271; Powell v. Tuttle, 3 N. Y. 396; State v. City of Paterson, 34 N. J. Law, 163. Dillon on Municipal Corporations, vol. 1, § 244 (5th Ed.), lays down the rule that:
“The principle is a plain one that the public powers or trusts devolved by law or charter upon the council or governing body, to be exercised by it when and in such manner as it shall judge best, cannot be delegated to others.”
There was no resolution by the common council approving the action of the engineer and clerk in the advertising for bids. It is argued that the acceptance of the bids by the common council ratified the acts of the engineer and clerk in advertising, but this is a strained conclusion to be reached. Further, the council could not ratify something which was required to be done only by their discretion and judgment, and which had been done without it. Hydes v. Joyes, 4 Bush, (Ky.) 464, 96 Am. Dec. 311; Pilots v. Vanderbilt, 25 N. Y. Super. Ct. 367, 380; State v. Jersey City, 25 N. J. Law, 309. The court cannot say the plaintiff was protected by the notice given by the engineer and clerk, for that which the Legislature has directed to be done by one party for the protection of a taxpayer a court cannot declare may be legally done by another party. People v. Common Council, 189 N. Y.
It will be noted that each bidder, whether he bid upon one street, which he was permitted to do under the plans and specifications, or bid on all of the streets, was required to deposit $10,000; whereas, by the original resolution determining to pave, a deposit of $1,500 was all that was required for a bid upon any one street. The remarkable change from requiring a deposit of $1,500 as security by each bidder, who elected to bid for one street, to $10,000, will be appreciated when it is stated that the entire cost for paving Grand street with the extras was $7,142.91, West street $5,409.37, West Eulton street $3,203.39, and Spring street $10,911.67, so that the small contractor, who elected to bid, for instance, on West Fulton street, was required to deposit $10,000, when the total amount that he could receive on the performance of the contract was but $3,203.39; and, further, the plans and specifications provided that if the bidder refused to enter into a contract for the doing of $3,200 worth of work, and had deposited the $10,000, the latter amount became the property of the city by the terms of the plans and specifications. The direct result of such a requirement as tire deposit of $10,000 to secure the job to pave any one of the streets, at least other than Kingsboro avenue, was to prevent bidding.
This almost prohibitive amount of security required to bid was contrary to the spirit and intent of the charter and directly violative
“We hereby propose to furnish Dollarway pavement In accordance with Inclosed specifications on Grand and such other streets as your honorable body may select for paving with a bituminous wearing surface at $1.50 per square yard.”
By resolution the contract for paving Kingsboro avenue was awarded for a part of the street with bitulithic pavement at $2.49 per square yard, and the remainder with concrete with bituminous wearing surface pavement at $1.50 per square yard, and a contract was entered into with the successful bidder for paving the street with these pavements and at the prices stated. Later the contract was changed, and the paving for the entire surface of Kingsboro avenue was so changed that the entire street was paved with concrete pavement with bituminous wearing surface at $1.50 per square yard.
The specifications provided that that street should be paved with a bituminous bound pavement on six-inch concrete foundation, and for which the successful bidder bid $2.49 per square yard; but he finally got the contract to lay a pavement on that street with a bituminous wearing surface at $1.50 per square yard. There was no specification for the paving of Kingsboro avenue with the kind of pavement contracted for and laid, nor were there any bids received for the paving of that street with that kind of pavement, unless it was contained in the letter before noted. Kingsboro avenue, as we have seen, cost approximately one-half of the entire pavement laid in the city at the time in question. There was no specification permitting Kingsboro avenue to be paved with a pavement with a bituminous wearing surface, but the requirement of the specification was for a bituminous bound pavement on six-inch concrete foundation. While the bituminous wearing surface was laid, apparently on a six-inch concrete surface, yet the difference between that and the pavement specified in the specifications is well illustrated by the bids of the successful bidder, who bid $2.49 for the laying of the bituminous bound pavement
Plaintiff’s assessment must be vacated, and a draft decision may be submitted in accordance with this opinion.