161 Misc. 944 | N.Y. Sup. Ct. | 1937
This is the return of an order to show cause, first, why the award of a contract for the construction of a well and pumping equipment in the village of Mineóla by the board of trustees of the incorporated village of Mineóla to the Layne New York Co., Inc., should not be declared null and void, and, second, why the defendants, constituting the board of trustees of the incorporated village of Mineóla, should not be enjoined and restrained during the pendency of this action and until the entry of final judgment herein, from taking any action intended, calculated or designed to carry into effect any contract or contracts with the Layne New York Co., Inc., for the construction of a well and pumping equipment of the village.
The action is brought pursuant to the provisions of section 51 of the General Municipal Law allegedly to prevent waste in awarding a contract. Plaintiff is a taxpayer and the defendants, except the Layne New York Co., Inc., are the mayor and the trustees of the village. The village of Mineóla owns its own municipal water plant. The village is incorporated pursuant to the provisions of the Village Law of the State of New York. Pursuant to an authorization for the appropriation submitted to and carried by
Bidder Bid
C. W. Lauman & Co., 50 Church street, New York.... $31,700
Artesian Well & Equipment Co., 30 Church street, New
York........................................... 26,200
Sprague & Henwood, W. Forty-second street, New
York.......................................... 22,875
Layne New York Co., Inc., 92 Liberty street, New York 28,040
After the opening of the bids, it was the recommendation of the water committee and the engineer that the bid for the new well be given to the Layne New York Co., Inc. The board adopted a resolution accepting the bid of Layne New York Co., Inc., and authorized the mayor to execute a contract therefor in behalf of the village.
The plaintiff contends that the awarding of the contract to the defendant the Layne New York Co., Inc., was illegal, wrongful and in bad faith, first, because the board of trustees failed to comply with the law in that there was no advertisement for bids containing a statement of the time and place where all bids received would be publicly opened and read, and, second, that there would be a waste of taxpayers’ money for the reason that the board ignored and failed to consider the low bid of Sprague '& Henwood.
As to the claim of illegality, plaintiff bases this contention on the requirements of section 26-a of the Public Works Law. This point will be considered later.
The court finds that the plaintiff has failed to sustain the second claim. The village of Mineóla already had a well and pumping
With respect to the alleged illegality, the only question before the court is as to whether or not section 26-a of the Public Works Law applies to public works by incorporated villages. Section 26-a of the Public Works Law of the State of New York reads as follows:
“ § 26-a. Opening and reading of bids for contracts for public work. Notwithstanding any inconsistent provisions of any general, special or local law, contracts for public work shall be awarded by any board, officer, agency, department or commission of the State or any political subdivision thereof or by any district contained therein only after advertisement for bids which shall contain a statement of the time and place where all bids received in pursuance of such notice will be publicly opened and read and, pursuant to such notice, all bids received shall be publicly opened and read at the time and place so specified.”
The Public Works Law was a statute enacted in the year 1923. Section 26-a was added by chapter 641 of the Laws of 1934. Its provisions have mostly to do with the State Department of Public Works. By the statute it is enacted that in the organization of the department there shall continue to be the following divisions: (1) Division of canals and waterways; (2) division of highways; (3) division of public buildings; (4) division of engineering; (5) division of architecture. The obvious purpose and intent of the enactment of the Public Works Law was to put under one head various departments of the State of New York. The Public Works Law does not set forth the various laws in relation to the departments that were taken over and reference must be had to the particular laws in order to ascertain the affecting provisions, such as Canal Law, the Public Buildings Law and the Highway Law.
It is to be kept in mind that the law does not require the board of trustees of a village to award a contract to the lowest bidder
The decision of the question before the court is dependent upon whether the words “ political subdivision thereof,” as used in the statute, were intended to include incorporated villages. Is it possible that the Legislature, if it had intended to make such a drastic change in the procedure to be followed by incorporated villages in the matter of letting contracts, would have placed such a requirement in a statute designed chiefly to co-ordinate various State activities into a Department of Public Works, the Superintendent of which was required to have his office at Albany, N. Y.? It would seem not. Nevertheless, the court is unable to escape the effect of the broad and all-inclusive language of section 26-a of the Public Works Law. The first phrase thereof reads as follows: “ Notwithstanding any inconsistent provisions of any general, special or local law.” The words “ general,” “ special ” and “ local,” used in the statute, are significant. The word “ local,” as used in the statute, would tend to suggest that section 26-a was not intended to refer merely to State works or to works such as canals, waterways, highways and public buildings, of which the State Superintendent of Public Works had jurisdiction, but that it was intended to refer to any public work anywhere in the State, even though that public work was local and not State public work in character. The next phrase in section 26-a is also worth noting. It reads: “ contracts for public work shall be awarded by any board, officer, agency, department or commission of the State or
Much time has been spent by the attorneys in this case in defining the words “ political subdivision thereof ” as used in the statute. The attorneys for the defendants argue that “ political subdivision ” is not intended to include cities or villages but refers rather to the State, counties therein and towns therein.
The village of Mineóla is a municipal corporation. (Gen. Municipal Law, § 2.) Its board of trustees is a creation of the statute with no inherent powers. (Matter of South Market Street, 76 Hun, 85.) Its power to establish or extend a water works system is delegated to it by the State of New York by an act of the Legislature, sections 221, 223 and 224 of the Village Law.
The question of water supply is a matter of State-wide concern over which the Legislature has full control. (Matter of Suffolk Co. v. Water Power & Control Commission, 269 N. Y. 158; Matter of Village of Massena v. St. Lawrence Water Co., 126 Misc. 524.) A municipality exercising its power to furnish water is acting in its legislative and governmental capacity. (Matter of Village of Massena v. St. Lawrence Water Co., 126 Misc. 524.) In City of Trenton v. State of New Jersey (262 U. S. 182) the court said: “ The city is a political subdivision of the State, created as a convenient agency for the exercise of such of the governmental powers of the State as may be entrusted to it. The diversion of waters from the sources of supply for the use of the inhabitants of the State is a proper and legitimate function of the State. This function may be left to private enterprise, subject to regulation by the State; it may be performed directly; or it may be delegated to bodies politic created for that purpose, or to the municipalities of the State.”
It would seem that in like manner an incorporated village should be held to be a political subdivision.
The court is of the opinion that the words “ political subdivision,” as used in section 26-a of the Public Works Law, are not to be construed in any narrow or technical sense, in view of the sweeping character of that section, but are to be construed in the light of the purpose aimed to be accomplished, and according to the ordinary use of the words. It may well be that the Legislature of the State
The defendants also contend that the sending of the plans and specifications to a selected list of four corporations constituted an advertisement for bids within the meaning of section 26-a if that statute applies. With that the court does not concur. It is conceded that there was no general notice of any kind posted, published or otherwise disseminated; that is, not the public notice which the statute intends.
Because of the fact that the board of trustees of the village of Mineóla acted illegally in failing to comply with the statutory requirements of advertising for bids, the award of the contract was null and void and accordingly the application for the temporary injunction is granted.