198 N.Y. 402 | NY | 1910
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *404 Provisions similar to the one in the defendant's charter from which we have quoted are common in municipal *406 charters everywhere. Such provisions are intended to prevent favoritism. They result from an effort to prevent official action being influenced by improper motives. The same effort to prevent improper official action finds expression in the Village Law (section 332), the General City Law (section 3) and in many municipal charters, where it is provided that an officer therein shall not be directly or indirectly interested in a contract which he, or a board of which he is a member, is authorized to make on behalf of the municipality.
Municipal officers acting in behalf of the municipality should not have a personal interest in determining who shall be awarded a contract or be affected in any way in their official action towards a favorite among the bidders. Such contracts should be made with the lowest responsible bidder therefor, because there is less opportunity in contracts so let for improper special agreements to the disadvantage of the corporation, and such contracts are in consequence thereof, and because of the competition, more economical for the municipality. The meaning and purpose of provisions in municipal charters requiring that contracts shall be made with the lowest responsible bidders therefor have been repeatedly defined and stated by the courts.
In Brady v. Mayor, etc., of N.Y. (
In People ex rel. Coughlin v. Gleason (
Such a statutory provision enacted as a protection to the corporation cannot be used to make a disobedience of its provisions by the municipal officers a double source of punishment to the municipality. If the plaintiff is right in his contention then a disobedience of the provisions of the statute will make the municipality pay the difference between the lowest bid and the bid for which the contract is made and also the profit that the lowest responsible bidder would have made if the statute had not been violated. But such is not the purpose of the charter provision.
In Strong v. Campbell (11 Barb. 135) the court say: "Whenever an action is brought for a breach of duty imposed by statute, the party bringing it must show that he had an interest in the performance of the duty, and that the duty was imposed for his benefit. But where the duty was created or imposed for the benefit of another, and the advantage to be derived to the party prosecuting, by its performance, is merely incidental and no part of the design of the statute, no such right is created as forms the subject of an action." (p. 138.)
In East River Gas Light Company v. Donnelly (
The court used the language quoted in an action brought by the plaintiff against the defendants, who composed the common council of Long Island City, to recover against them individually the damages which he claimed to have incurred by reason of their failure to obey the statute. Such language, *408
however, is applicable to this action in which the plaintiff seeks to make the municipality respond in damages for the failure of its officers to obey a statute enacted for the express purpose of protecting the municipality in its property rights. The statute was not enacted for the benefit of the plaintiff, and he cannot recover by reason of its provisions. (Talbot Paving Co. v. City of Detroit,
Although the plaintiff asserts rights under the statute, he also claims to be entitled to recover on contract. No contractual relation can arise merely from a bid unless by the terms of the statute and the advertisement a bid in pursuance thereof is, as a matter of law, an acceptance of an offer wholly apart from any action on the part of the municipality or any of its officers. Such plainly is not the plaintiff's case. The statute and the advertisement in this case call for proposals. The common council reserved the right to reject any and all bids. Under a statute requiring that all contracts shall be awarded to the lowest bidder, the body awarding the contract acting in good faith may refuse to so award the contract if they deem it for the best interest of the city to do so, and may reject all of the bids and readvertise. (Walsh v. Mayor, etc., of New York,
This court in Erving v. Mayor, etc., of New York (
The plaintiff's bid in this case was never accepted. It was expressly rejected by the common council. The plaintiff, *409 therefore, does not sustain a contractual relation with the defendant and cannot sustain this action as upon contract. The authorities mentioned by the plaintiff are all distinguishable from this case. They are each based upon an accepted bid.
In Lynch v. Mayor, etc., of N.Y. (
In People ex rel. Lunney v. Campbell (
In Pennell v. Mayor, etc., of N.Y. (
In People ex rel. Ryan v. Aldridge (83 Hun, 279) the common council of Rochester advertised for proposals for a survey of a portion of the territory of the city, and directed that the mayor execute a contract for the work to the lowest competent surveyor bidding therefor. The bid of the relator was accepted and the work was awarded to him by resolution. Shortly thereafter the common council voted to reconsider its previous action and indefinitely postponed further action thereon. This proceeding was brought to compel the execution of the contract with the relator. Held, that if a municipality has contracted with a party to do certain work and afterwards refuses to have it done, the municipality does not thereby relieve itself from the obligation of the contract, but the remedy of the contractor is confined to his action for damages resulting from its breach.
It is urged that unless bidders are given some rights under the statutes mentioned it will result in the statutes being wholly disregarded. The provisions of such statutes are always rigidly enforced by the courts when their enforcement is sought by one for whose benefit they are enacted.
Actions upon contracts let in violation of such statutes are not sustained. (Dickinson v. City of Poughkeepsie,
The petitions of contractors, who have taken contracts in violation of such statutes to compel municipal officers to pay in pursuance of such contracts, are denied. (People ex rel.Coughlin v. Gleason,
Assessments involving expenditures in violation of such statutes are set aside upon the petition of taxpayers. (Matterof Emigrant Industrial Savings Bank,
An action may be maintained by a taxpayer to prevent any illegal official act by an officer, agent, commissioner or other person acting on behalf of a municipal corporation. (General Municipal Law, sec.
A taxpayer otherwise qualified to maintain an action under the statutes to prevent illegal official acts and a waste of public funds is not otherwise disqualified because specially and peculiarly interested in the event. (Gage v. City of NewYork,
Counsel for the appellant in his oral argument requested that we should discuss in this opinion the question of the power of the courts in any case to direct by mandamus the officer or board charged with the duty of entering into municipal contracts as to which of several bidders therefor should be awarded the contract. That question is not presented on this appeal for our determination. It should be left for discussion and determination in a case where the question is directly and necessarily involved, unaffected by this decision except so far as it is controlled by what we have actually and necessarily decided herein.
The plaintiff cannot sustain this action and the judgment should be affirmed, with costs. *412
Concurrence Opinion
I concur in the result upon two grounds: 1. The plaintiff had no right to recover damages from the defendant for breach of contract, because there was no contract, as is clearly shown by Judge CHASE in his opinion.
2. The remedy of the plaintiff was by mandamus to compel the execution of a contract in accordance with the statute. He was the lowest responsible bidder; he tendered adequate security and the statute commanded the common council, unless they rejected all bids, to award the contract to him. (People ex rel.Coughlin v. Gleason,
The rejection of his bid and the acceptance of one higher by several thousand dollars was arbitrary and illegal. It was presumptively corrupt, for favoritism is one form of corruption. For such a violation of law by those who represent the city there should be a remedy against the city and, as it cannot be by way of damages for breach of contract it should be by mandamus. Otherwise competition may be stifled through the want of inducement to bid for public work.
The opinion in People ex rel. Lunney v. Campbell (
CULLEN, Ch. J., HAIGHT, WERNER, WILLARD BARTLETT and HISCOCK, JJ., concur with CHASE, J.; VANN, J., concurs in result in opinion.
Judgment affirmed. *413