20 How. Pr. 206 | N.Y. Sup. Ct. | 1860
The preliminary objections taken to the hearing of the motion on the part of the contracting board, to wit: shortness of the time of notice of motion,
The power of mandamus, it is conceded, is an extraordinary power, and ought not to be put in exercise when the party is provided with any other adequate remedy. But when the right of the party is clear and undoubted, and the injured party has no other specific means of compelling the performance of the thing to be done, mandamus is not only the proper remedy, but is one of the most efficient proceedings known to the law for the enforcement of a right. The examination must therefore be directed to this view, the rights of the parties. The undisputed facts in this case are, that “ The Contracting Board,” in pursuance of the pro
The notice informed the contractors that the plans, maps, specifications, quantities of material, forms of contract, notices, and other necessary papers which they would require, would be ready at the engineer’s office for examination, and that proposals and bonds could be obtained at the division engineer’s office, before the letting.
The relators’ proposal for this work, in the aggregate, was the lowest of any bidder, whose papers were sufficiently formal to be acted upon by the board. The board have refused to award the contract to the relator, and are about; to award it to another person who proposed for the same,' at a price in the aggregate exceeding $1,000, above the sum proposed by the relator. The papers read in opposition to the motion, show a preamble and resolution of the contracting board, passed since the service of the motion papers on the chairman, by which it appears that they have rejected the relators’ proposals. The grounds of rejection stated therein are, in substance that the relators’ proposal is, in the opinion of the board, deceptive and fraudulent, and by the appearance of said proposal, it seems evident
There is no provision of law that I am aware of, nor is any custom of. the state officers shown to be in existence, by which they are bound to pay to the contractor, monthly, or otherwise periodically, before the completion of his contract, any part of the contract price; but on the contrary, one of the conditions of this proposition of the relator is, that he will enter into the contract within ten days after it shall have been awarded to him, “ upon the terms pre
Assuming, as I do, that these state officers are influenced only by a stern sense of patriotic duty to the state, they have, as I think, mistaken their powers; they have mistaken their duty; they have mistaken the interests of the state; they have no cause for apprehension that the state is insecure ; it will be their own fault if it be so. They have the power in their own hands to prevent such a result.
There can be no reason why the state should pay another contractor above $1,000 of its funds, for doing the same work, more than the sum proposed by the relator. They owe another duty to the state which they must not overlook, or forget, and for which the law and their equal duty will hold them responsible. They cannot, without the strongest reasons, permit the state to lose of its funds, to the amount of $1,000, upon a small contract like this; which, deducting the state materials allotted by the engineer, amounts to only about $9,000. The 7th subdivision, of section 10, of the act of 1854, plainly points out to them their duty in this regard, in the following language. “All contracts for work or materials shall be made with the person or persons who shall offer to do or provide the same, at the lowest price, with adequate security for their perform
The legislature doubtless had good reason to put restrictions upon the power of this contracting body. Whether or not we may look to past history, in regard to official conduct on this subject, we have a right to suppose that this statute was intended to check the system of alleged favoritism that had once been practiced in high places; but it is sufficient for the courts, that there is a statute on the subject, that expresses the legislative will, to which they, as well as all subordinate bodies, must submit. There is no dispute about the facts in the case. My conclusion is in the view I have taken of this question, and herein before expressed, that the contracting board ha¡ve the absolute power by statute, as party of the one part, to make a contract within the limits of the power conferred; that their proposals or notice, to obtaining bids, is a proposition on their part of the terms by which they will be bound: that
Let a peremptory mandamus therefore issue.