People ex rel. Rodgers v. Coler

| N.Y. App. Div. | Dec 9, 1898

VAN BRUNT, P. J.

It seems to us, upon a reading of the statute, that it was the intention of the legislature that there should be no relaxation of the requirement that all bids or proposals should be publicly opened by the officer or officers advertising for the same. This is not only explicitly required by the language of the statute, but the fact that there is also a requirement that such opening shall take place in the presence of the comptroller, followed by the further provision that the opening of the bids shall not be postponed if the comptroller shall, after due notice, fail to attend, emphasizes the intention that such opening should not take place except in the presence of the officers advertising for the bids or proposals. The absence of the comptroller may be excused, but the absence of the officer advertising, for the bids cannot be dispensed with. The legislature has been explicit in stating whose absence after due notice shall not postpone the opening of the bids. It was manifestly intended that the other officers mentioned in the statute must of necessity be present. These provisions are salutary in their nature, and intended to prevent the manipulation of bids before they come to the hands of the officer who is to report the same to the comptroller;. and, there being no provision for action in the absence of certain officers, procedure without their presence is manifestly irregular and contrary to law. Under the conceded facts, therefore, the opening of the bids in the case at bar was a nullity. The provisions of law were not complied with, and the subsequent action of the commissioner of street improvements was entirely without authority. He had no power to waive the requirements of the statute, and to make that legal which was clearly prohibited by the provisions of law.

The only other question which remains to be considered is whether this objection can be taken by the comptroller at the present time, or whether it should be determined when the application for ■a contract is presented. We think city officials cannot be called upon to do any act in furtherance of procedure which had no legal inception. The commissioner of street improvements having no authority to make any report to the comptroller, the court should not compel the comptroller to act thereon.

The order should be affirmed, with costs. All concur.