13 Barb. 432 | N.Y. Sup. Ct. | 1852
What is the object of this motion? It is to compel the Canal Board to approve of the contracts set out in the relator’s affidavit, and thereby give them validity against the people of the state of New-York. Neither the Canal Board nor the individual members of that board, have any interest in this matter. That board was, by the constitution, organized as one, and a very important department of the government of the state. The importance of that department of the government may in some degree be judged of from the facts connected with, although not appearing upon the face of the papers in, this matter. It was stated upon the argument and not disputed by any one, that more than three thousand proposals were made in pursuance of the advertisement above set out; that more than three hundred contracts had been made, and a certificate of the attorney general was read, showing that the Canal Board had not, by any resolution entered in the minutes of the board, approved of any of the contracts, otherwise than by the resolution of the board set out in the affidavit upon which the motion is made.
I may, I think, assume, without going too far out of the record, or doing injustice to any one, that these proposals were made for doing all the work, and furnishing all the materials to complete all the canals mentioned in the advertisement, and that the three hundred and odd contracts embrace all that work and materials ; and it may be allowable to look into chapter 485 of the laws of 1851 to form an estimate of the amount to be paid to satisfy the terms of those contracts. In the 12th section of that chapter there is this proviso: “ Provided, however, that the con
It will not be unreasonable to assume that the contracts which have been made, but are, as the relator claims, invalid, amount in the aggregate to at least $9,000,000. Although the relator does not ask for a mandamus to compel the Canal Board to approve of all those contracts, yet if he be entitled to a mandamus, every other person having a like contract will probably be entitled to the same remedy. The affidavit of the relator shows that he asks for a mandamus on the assumption that the contracts which he has are invalid; that the people are not yet bound by those contracts. Whether this assumption be well founded, I do not propose to discuss or decide; but supposing it to be well founded, has the relator made out a fit and proper case for a mandamus 1 Although the motion is in form against the Canal Board, it is in effect against the people of the state. The relator wants nothing of the Canal Board but to approve of contracts, and thereby bind the people of the state.
The issuing of a mandamus is in effect the commencement of an action. (1 P. Wms. 351.) In Kendall v. United States, (12 Peters, 615,) Mr. Justice Thompson, when speaking of the proceedings on a mandamus, said: “ It is an action or suit brought in a court of justice, asserting a right, and is prosecuted according to the forms of judicial proceedings.” , The motion of the relator, then, in effect, is for leave to commence an action, in form, against the Canal Board, but in substance against the state, to compel the Canal Board to give vitality to certain contracts as against the people of the state. What authority has the court to authorize an action to be commenced against the state 1 The state no more than the United States is suable.
In Reeside v. Walker, Secretary of the Treasury, (11 Howard's Rep. U. S. 272,) an application was made to the circuit court of the United States for the district of Columbia, for a mandamus against the secretary of the treasury, to compel him
Again, Mr. Justice Woodbury said: “Now under these circumstances, though a mandamus may sometimes lie against a ministerial officer to do some ministerial act connected with the liabilities of the government, yet it must be when the government itself is liable, and the officer himself has improperly refused to act. It must even then be in case of clear and not doubtful right.” The relator makes a motion on the assumption that the government itself is not liable: his only object is to make the government liable.
In another part of the opinion, Mr. Justice Woodbury said: “ It is well settled, too, that no .action of any kind can be sustained against the government itself, for any supposed debt, unless by its own consent, under some special statute allowing it.” There is a precedent for such a statute, Laws of 1825, ch. 275, § 1, and of the mandamus allowed in virtue thereof. It has long been regarded as a principle of government, that private property could not be taken for public use without just compensation. The canals of the state could not have been made without taking property, and to provide for making such just compensation, canal appraisers were appointed, whose duty it was to appraise all damages to individuals by the making of any of the canals. A Mr. Jennings, who at the time and before the making of the Erie canal, claiming to own various hydraulic works standing on the
There are other views of this ease, which, in my judgment, render the relator’s rights to a remedy by mandamus doubtful. It-was taken for granted, upon the argument, that the duty
Various cases were referred to, on the argument, to show that this was a proper case for a mandamus, to put the Canal Board in motion. In The King v. The Bishop of Lincoln, (2 Durn. & East, 338,) the bishop had appellate jurisdiction, in certain cases, and a mandamus was allowed, to compel him to receive, hear and determine an appeal. The party appealing had a legal right to appeal, and it was the bishop’s duty to receive, hear and determine the appeal; but it does not follow from that case,
Although the attorney general declined to argue the case, his brief was handed to the court. The first point in which was, “ The relator does not show a dear right. This is indispensable on motion for a mandamus. (The People v. The Corporation of Brooklyn, 1 Wend. 318.)” I am inclined to the opinion that there is much force in this objection. In the case cited, Savage, Ch. J. in giving the opinion of the court, said, at page 324: “ There must be a right, therefore, without any other adequate remedy: or a mandamus does not issue, and I incline to the opinion that the right must be complete, not inchoate. The eases cited in which this court has compelled supervisors to raise money assessed to individuals for damages on opening roads, (19 John. 272, 5 Cowen, 292,) are cases where the right of the relators was complete, by the assessment of the jury and the justices, and the supervisors had no discretion about it.” And the same chief justice, in The People v. The Supervisors of Columbia County, (10 Wend. 366,) in giving the opinion of the court, on a motion for a mandamus,^ said: “ The party asking for a mandamus must have a dear legal right, and no other appropriate specific remedy.” In The People v. The Judges of Columbia Common Pleas, (3 How. Pr. Rep. 32,) Bronson,
In Reeside v. Walker, already referred to, Mr. Justice Woodbury, when speaking of cases in which a mandamus might lie against some ministerial officer, to do some ministerial act connected with the liabilities of the government, adds: “ It must even then be a ease of clear, and not doubtful right.” In the matter of The Life and Fire Insurance Company of New-Work v. The Heirs of Nicholas Wilson, (8 Peters, 291,) Mr. Justice McLean delivered the opinion of the court, and at page 302, said: “ The writ of mandamus is subject to the legal and equitable discretion of the court, and it ought not to be issued in cases of doubtful right.” In that case the district judge of the eastern district of Louisiana, refused to sign a judgment roll of a judgment rendered by his predecessors ; a mandamus was applied for and granted. Unless the record was signed, the judgment could not be enforced, nor reversed for error. Both parties had a clear and complete right to have the judgment signed. I think, on a careful examination of all the cases, it will be found that no individual can seek a remedy for a private wrong by a mandamus, unless his right to what he asks for in the writ is complete. It may then be asked, what right has the relator to compel the Canal Board to approve of the contracts mentioned in his affidavit ? He assumes, as the foundation of his motion, that the contracts are void; that they are inchoate. One of his learned counsel said: “ That every letting by the minor board must be approved by the Canal Board, before it
I have shown that he cannot be benefited by the Canal Board disapproving of his contracts; then how has he acquired a complete right to demand that the Canal Board shall approve of them? He saw the advertisement published by order of the Canal Board, and hoping to obtain a number of contracts, he made various proposals. Did the fact that he made various proposals, give him a complete right to demand of the Canal Board, by mandamus, that they should examine his proposals and give him contracts ? Thousands of others made proposals, and would it not open a frightful source of litigation to hold that every one who made proposals, thereby acquired a complete right to call on the Canal Board, by mandamus, to examine his proposals and accept or reject them; and if rejected, that he can have that decision reviewed upon a writ of error, certiorari or appeal ? And who is to pay the expense of this endless litigation on the part of the Canal Board? If the state must pay the expenses, it would be well to have a fund of some millions at once created for that purpose. But, it may be said that the relator has not only made proposals, but the canal commissioners, the state engineer and surveyor, and the division engineer, have awarded contracts to him, and have in the name of the people of the state of Hew-York, executed and delivered the contracts to him; and that he has signed, sealed and delivered the counterpart of the' contracts, which have been deposited in the proper public office.
This would seem to give color to his claim, and show that his right does not rest solely on the fact that he made proposals ; but he, by his counsel, insists that those contracts have no vitality ; that " at present they are inchoate, and are no more valid than the draft of one by a scrivener,” &c.; that the award of the contracts to the relator by the canal commissioners, state engineer and surveyor, and division engineer, was without legal authority and void. If it be true that the contracts were
Suppose all the canals in the state had belonged to one individual, and he had published a notice similar in substance to the one set out in the relator’s affidavit, that he would receive proposals for completing all the canals until the 18th of November, 1851; and he had in his advertisement promised that he would award the contracts to such parties as should, in his judgment, propose to perform the work on terms most safe and advantageous to him, having due regard to price, the ability of the parties, and security offered for the performance thereof; would each person who should, in answer to such an advertisement, make a proposal to do work on any of the canals, thereby acquire a legal right to call on the advertiser and insist that he should examine, and either accept or reject, his proposals ? And if his proposals were rejected, could he then commence and maintain an action against the advertiser, in case he could satisfy a jury that he proposed to perform the work on terms most safe and advantageous to the advertiser, having due regard to price, the ability of the parties and security offered for the performance thereof? If a party would not, in such a case, acquire any legal right which could be enforced against the advertiser, can the relator have any such rights as against the state, because he made proposals ? Suppose the person making proposals in pursuance of the advertisement of an individual, should afterward call upon the advertiser and say to him, “ I read your advertisement, and according to its terms, have made you several proposals, and now I demand of you to accept or reject my proposals; would not the advertiser have a right to answer the
In answer to this objection, it has been said on the part of the relator, “ As the Canal Board have a judicial discretion to exercise, the mandamus can only command them to proceed to a determination. The relator has a right to this determination. He cannot be required to proceed and fulfill an incomplete contract, subject to the hazard of a subsequent disapproval by the Canal Board.” That is undoubtedly true. If the contracts be incomplete, and the approval of the Canal Board be necessary to give them effect, and they have refused on reasonable request to give that approval, the relator is at liberty to abandon the contract as soon as he pleases. He is not bound by the contracts until the people are bound. On the part of the relator, it has been said that there are cases in which a relator who asks for a mandamus, need not have a legal right to demand to have the thing done, which he asks for in his writ; but I have not been so fortunate as to find any such case.
The remedy given by a mandamus, is a legal remedy, (10 Wend. 393,) and no man can have that remedy unless he has a legal right to demand what is asked for in his writ. If a party wishes to compel a court to give judgment, he must show a legal right to demand that judgment shall be given; if he wishes to compel a board of supervisors to audit and pay an account, he must show that he has an account which the supervisors are bound to audit, and allow him something. How much, is, in many cases, loft to the discretion of the supervisors. (The People v. Supervisors of Albany, 12 Wend. 257. The People v. The Supervisors of the County of Kings, 7 Id. 530.) In
The case of The People v. Collins, may be distinguished from the one now under consideration. By an act of the legislature, commissioners were appointed to lay out a road in the county of Chenango; and by the same act, it was' made the duty of the commissioners of highways of each of the towns through which the road should be laid, to cause the said road to be opened and worked in their respective towns.
The commissioners of one of the towns through which the road was laid, refused to open it, and a mandamus was applied for and granted to compel them to open the road, as the statute had made it their duty to do. They had no discretion in relation to it. They were bound by statute to open the road, and the court said : “ The power of this court to grant a mandamus, at the suit of the people, to compel the commissioners of highways to perform their duty has often been exerted and cannot be questioned.” “In such cases the wrongful refusal of the officers to act, is no more the concern of one citizen than another, like many other public offenses. It is at least the right if not the duty of every citizen, to interfere and see that a public
It may be said, and truly said, that every citizen of the state is interested in having the canals completed, as much so as in having a highway opened; but I do not perceive how it follows that every citizen has a legal right to a mandamus to compel the Canal Board to approve or disapprove of each and ev.ery act which the canal commissioners, the state engineer and surveyor, and a division engineer have made in the name of the people, with individuals. One citizen may suppose that the. interest of the state would be advanced by giving immediate effect, to all these contracts; another citizen, equally patriotic and wise, may believe that it is the imperious duty of the Canal Board to disapprove of all the contracts, and each of them may at the same moment be moving the same court, or different courts, one for a mandamus for the purpose of compelling the Canal Board to approve of the contracts, and the other with a view of procuring a disapproval of the contracts.
I am not prepared to admit that the relator has, because he is a citizen of the state, a legal right to the mandamus asked for; nor am I prepared to admit that if any state officer omits a public duty, each citizen has a right to put him in motion by a mandamus. By 1 R. S. 407, § 52, it is made the duty of the comptroller, when a tax has remained unpaid for two years from the first day of May following the year in which the same was
If the views I have already taken of this case be unsound and fallacious—if a mandamus may rightfully issue against the Canal Board, to compel that board to approve of, and thereby give vitality to contracts against the state—if a formal disapproval by that board of the contracts mentioned in the relator’s affidavit, could be reviewed and reversed upon a writ of error, certiorari or appeal; if the relator has shown such a legal right, as would justify the granting of the writ asked for, there is another question to be considered.
Is this a case in which a mandamus ought to be granted? In Ex parte Fleming, (4 Hill, 581,) Cowen, J. in delivering the opinion of the court, said: “ The mandamus is a prerogative writ which we have the power to issue or withhold, according to our discretion.” And in Van Rensselaer v. The Sheriff of Albany, Savage, Ch. J., said: “ The court may exercise a discretionary power, as well in granting as in refusing a mandamus; as when the end of it is merely a private right, and when the granting of it would be attended with manifest hardships and difficulties.
There are, as has already been stated, more than three hundred contracts, not one of which, as the relator insists, has been approved of by the Canal Board so as to make it a contract on the part of the state. Some of the contracts, as was taken for granted on the argument, severally exceed $200,000 in amount, and the aggregate amount of all the contracts probably exceeds $9,000,000.
Some of the contractors, no doubt, have entire confidence in
If the various proposals which have been made under chapter 485 of the laws of 1851, and the contracts which have been made by the canal commissioners, the state engineer and surveyor, and a division engineer, are to be the subjects of litigation, the work cannot be completed within the time limited by that statute.
Cady, Justice.]
The delay in the completion of a single job on the Erie canal may deprive the state for years of the increased revenue which is anticipated from the enlargement of that canal. The legislature can, but no court has the power to prevent this ruinous delay and litigation; and I am persuaded that to grant the mandamus asked for in this case would lead to litigation seriously injurious to the best interests of the state and not beneficial to the parties. I shall, therefore, deny the motion, with ten dollars costs.