175 N.Y. 394 | NY | 1903
The order herein should be reversed and the proceeding dismissed on the ground that the highway commissioners of the town of Oyster Bay had not authority to contract with petitioner to superintend the work upon the bridge, the rebuilding of which was authorized by the town board pursuant to section
The statute provides that such a repairing or rebuilding cannot take place unless consented to by the town board, and "if the expense thereof exceed $500, it shall be done under a written contract therefor which must be approved by the town board." That procedure was followed with reference to the contract to repair the bridge, but the town board did not consent to the making of any contract with petitioner, nor was it in writing and approved by the town board, as the statute contemplates.
Now, it is said in the opinion of the court below: "I find nothing in section
There might possibly be some slight foundation for an argument in that direction if the commissioners of highways were agents of the town, having the right to represent it and contract for it in real or supposed emergencies. But they are not agents of the town.
In People ex rel. Van Keuren v. Town Auditors (
In People ex rel. Everett v. Board of Supervisors (
Some indication of the extreme caution which has been observed on the part of the legislature to protect the towns against possible extravagance and misconduct on the part of commissioners of highways will sufficiently appear by reference to three statutes, covering a period of more than half a century. Chapter 16, Laws 1827, provided that the total amount to be raised on a town for highway purposes should not exceed $250. By chapter 274, Laws 1832, provision was made authorizing the raising of an additional sum of $250. By chapter 615, Laws 1857, an additional amount was authorized not to exceed $750. Thus the law continued until the enactment of the General Highway Law (Laws 1890, Ch. 568).
Enough has been said, I take it, to make it clear that under the statutes of this state as interpreted by this court the commissioners of highways of the town of Oyster Bay were without authority to make any contract binding upon the town unless it was such a contract as the statute specifically authorizes. The money which is raised for highway purposes passes into the hands of the highway commissioners and is disbursed by them. As a check upon the action of the commissioners they are required to present a report of their expenditures *399
with the vouchers in support thereof at the succeeding annual meeting of the town board, and when a contract is made as required by section
The petitioner, appreciating apparently that the authority of the commissioners of highways to make a contact with him could not be presumed, but that the statute authorizing it must be expressly pointed out, alleged in his petition that the commissioners caused the bridge to be rebuilt by consent of the town board, and, because the expense exceeded $500, it was done under written contract, duly approved by said town board. And in the copy of his bill which was presented to the town board for audit, and made a part of the petition, he described the character of the service and the authority for it in these words: "To work and labor performed upon the employment of said highway commissioners, in the extraordinary repairs or rebuilding by thesaid commissioners of the public bridge at Bayville in saidtown, in accordance with the resolution of the town board of said town adopted on or about March 26th, 1901, consenting to such repairs, or rebuilding, on the following days at $3 per day."
The petition, therefore, by which petitioner must be bound points to section
The expense of rebuilding exceeded $500. So it could not be done under the statute except under a written contract approved by the town board. If several different contracts be required to cover the entire work where the gross amount *400 of the cost exceeds $500, each and every one of those contracts must, of course, be in writing and be approved by the town board. Otherwise the scheme of the statute could be overthrown by subdividing the work into a large number of contracts, each for less than $500.
Such a construction of the statute is not admissible, and hence the commissioners of highways had no authority to make an independent contract with reference to these extraordinary repairs. In order to charge the town under this statute it was necessary, inasmuch as the total amount exceeded $500, that, if there were several contracts, each one — whatever its amount — should have been in writing and approved by the town board. As this was not done the town was not in any wise bound by the contract which the commissioners made with relator, and the action of the town board, therefore, in declining to audit the bill was correct.
If it be asked, how could the commissioners be assured of the faithful performance of the contract? — my answer is, first, that necessity cannot in any event take the place of statutory authority; second, that another and general statute provided for such situations — the statute which points out the duties of commissioners of highways, in the performance of which one or all of them should have made all necessary and proper inspection and charged for it at the rate per day permitted by law; and third, if there be necessity for expert service which a commissioner of highways cannot render in the course of a construction costing more than $500, the town board may consent to the employment of a competent person and the contract of employment may be reduced to writing and approved by the town board, in which case the contract price becomes a charge on the town by command of the statute.
The order should be reversed and the proceeding dismissed, with costs.
O'BRIEN, BARTLETT, CULLEN and WERNER, JJ., concur; GRAY and HAIGHT, JJ., dissent.
Order reversed, etc. *401