96 N.Y.S. 479 | N.Y. Sup. Ct. | 1905
This is a motion for an injunction pendente lite in a taxpayer’s action to restrain the performance of a contract for the construction of the Cross River reservoir, it being asserted by the plaintiff that in the awarding of the contract the Aqueduct Commissioners have exceeded their statutory powers or have acted in hostility to the public interests and that the carrying out of the contract will involve a waste of public funds, which the court’s aid is invoked to prevent.
While much is alleged in an attempt to show that the contract is ill-advised, this presents no question of materiality. It is well.settled that, in a taxpayer’s action, the court may not restrain the acts of public officers except so far as the acts complained of are without power, or where corruption, fraud, or bad faith, amounting to fraud, is charged. Talcott v. City of Buffalo, 125 N. Y. 280. Criticism of the manner in which public officers have exercised their judgment, within the limits of the powers conferred upon them, and without fraud, is not to be addressed to the court but to the lawmaking power (People v. Mayor, 32 Barb. 102, 113), and, while I do not hold that the award of this
TJpon the question of the commissioners’ power to enter into the contract before me, several points have been raised. It is contended that the projected work is beyond the general scope of the Aqueduct Commissioners’ authority to undertake; that the contract was awarded to persons other than the lowest bidder; that the successful bidder submitted what is known as an “unbalanced” bid, and that the contract, as awarded, contemplates the incurring of liability to some undetermined extent for additional work, in contravention of the statute. '
The point last referred to presents matter of gravity, and, as will be noted below, requires me to grant the motion for an injunction; the other points will be briefly discussed but are not found to disclose any infirmity in the contract, as the plaintiff contends.
The contention that the work was not within the authority of the Aqueduct Commissioners to undertake, proceeds upon the theory that the statute from which their powers were derived (Laws of 1883, chap. 490), has been so limited by section 518 of the charter (Laws of 1901, chap. 466) that the building of this reservoir is within the office of the Commissioner of Water Supply, Gas and Electricity, to the exclusion of the Aqueduct Commissioners.
It is to be noticed that section 518 of the charter of 1897 provided for the cessation of the Aqueduct Commissioners’ term of office on January 1, 1901, and prohibited these commissioners from beginning any new work. The section was reframed, however, in 1901, so far as to omit these provisions and to continue the commissioners in office until “ the completion of the work.” Obviously, “ the work ” was the building of an aqueduct with necessary reservoirs .as contemplated by the Aqueduct Act, since no other guide is afforded. If old work — that is, work earlier begun — were alone intended some words of restriction would naturally be looked for in this amendment to section 518 of the charter which eliminated a present prohibition of the commencement of “ new work,” but, as amended, the section simply refers to the Aqueduct Act and extends the commissioners’ term of office to the completion of “ the work ” generally.
That this reservoir is not on a direct line between the beginning and end of the aqueduct cannot affect the question. It is a reservoir to contain water for the purposes of the aqueduct, and the matter of necessity was wholly a question of discretion for the commissioners, controllable by the legislature, but, when exercised within the four comers of the statute, uncontrollable by this court.
The objection that the lowest bid was not selected, over
I now come to an infirmity in the contract, however, which, in my view, calls for the granting of the order sought. The statute which defines the powers of the commissioners in the matter of awarding such a contract (Laws of 1883, chap. 490) contains definite and thorough provision for the safeguarding of the public interests in the manner in which an expense for a public improvement of the character contemplated shall be limited and ascertained.
It is prescribed (§§ 25, 26, 27, 28, and 33) that all work to be performed at the instance and upon the order of the commissioners shall be by contract after submission of bids and after the form of the contract has been approved by the corporation counsel, and that all work shall be covered by contract with the exception of extra work not to exceed the sum of $1,000, or except extra work not to exceed the sum of $5,000, when certified to in writing by the commissioners as required for the public interests. It is perfectly clear that the expense to be incurred for work undertaken generally at the instance of the commissioners shall be measured definitely by a contract awarded in accordance with the terms of the statute and that the contract shall definitely disclose what' that expense is to be.
The contract now before me provides for the payment of certain sums for certain work to be done in the form of excavating, construction, or otherwise, the compensation of
With these provisions in the contract it is impossible to hold that the commissioners have confined themselves to the powers vested in them by the statute. As a guide to and measure of the expense to be incurred — its absolute and necessary office according to the scheme of the act — this contract is practically worthless and serves only as a measure of the scale of compensation to be received by the contractor in his dealings with the commissioners, to whatever extent the latter may deem it advisable to subject the public to expense. This the statute not only fails to authorize but is distinctly and expressly aimed to prevent.
In the cases of Kingsley v. City of Brooklyn, 78 N. Y. 200 and Hatter of Herriam, 84 id. 596, where provisions, reserving to the particular public officials the right to increase the amount of work to be done under the public contracts there considered, were deemed to be not unlawful, it appears that the particular statutes there involved authorized, or at least in no sense operated to negative, the validity of the provisions and it was held simply that the presence of such a reservation imported no suggestion of fraud in the contract. Under the statute now considered there appears to be no room for doubt that the reservation of the power to increase the
There is also before me a motion instituted by the successful bidders, parties to the contract, the performance of which is sought to be enjoined, for their joinder as parties to the action. There seems to be no serious opposition to this application and the replying affidavit meets the technical objection raised as to the right of the moving corporation to be heard. These contracts have a direct and substantial interest in the litigation, which seeks very materially to affect their rights under the contract which they have commenced to perform and they should be brought in as parties. Code Civ. Pro., § 452; Osterhoudt v. Board of Supervisors, 98 N. Y. 239.
Motion for injunction granted. The question of security to be determined upon the settlement of the order to be entered hereon.
Motion to bring in parties granted.
Motion granted.