Citation Numbers: 50 How. Pr. 500
Judges: Daly, Loew
Filed Date: 12/15/1875
Status: Precedential
Modified Date: 2/5/2022
— On or about the 31st day of October, 1872, an ordinance was adopted by the common council and approved
The comptroller refused to signify his approval of the sureties and returned the papers to the commissioner of public works, who now holds the same and declines to enter into a contract with the relator, on the ground that the adequacy of the sureties to said agreement or bond has not been approved.
The relator thereupon applied to this court, at special term, for a peremptory writ of mandamus directed to the respondents and commanding, or requiring:
1st. That the respondent Yan Sort return the bid and agreement of sureties or bond to the respdndent Green.
2d. That the respondent Green, as comptroller, approve of the sufficiency of the sureties and of their justification and acknowledgment, and return the said proposal and agreement of sureties to the said commissioner of public works.
3d. That the respondent Yan Hort, as commissioner of public works, on receiving the said proposal and agreement of sureties, with the approval of the respondent Green thereon indorsed, enter into a contract with the relator for the work in question.
The application was denied, and the relator now brings this appeal.
As the commissioner of public works has signified his willingness to execute the contract with the relator, upon the approval of the sureties’ bond by the comptroller, the only question which was discussed before ns on the argument, and which we deem it necessary to consider, is whether the court
In the construction of all public works or improvements performed under authority of law, the corporation is authorized during the progress of the work to pay for the same in installments from the proceeds of what are denominated assessment bonds which it is allowmd to issue (Laws of 1872, chap. 580, sec. 4; Laws of 1852, chap. 397). The laying of the assessment may, however, be deferred until after the whole work is completed (Manice agt. The Mayor, &c., 8 N. Y., 120; Wetmore agt. Campbell, 2 Sandf., 341) This being so, we can perceive no legal obstacle ; nor has any been suggested by the learned counsel for the respondents which would prevent the assessors from duly increasing the assessable valuation of the property adjoining the improvement after the completion of the work
It is next contended that although all the proceedings may be regular, the relator the lowest bidder, and the sureties offered by him unexceptionable, yet he cannot legally compel the city authorities to give him the contract. There is much force in this objection. The section of the charter of 1873 which the relator claims entitles him to this contract, as matter of strict legal right, declares, among other things, that “ all such contracts, when given, shall be given to the Ipwest. bidder (laws of 1873, chap. 335, sec. 91). The term “ when givenf clearly implies that a discretion may be exercised as to whether or not a contract shall be given at all (The People, &c., agt. The Contracting Board, 33 N. Y. 382; Same agt. Same, 27 id., 378). The authorities are not bound, at all events, to give the contract to the lowest bidder; but if given to guy one it should be given to him if he has, in all respects, complied with the requirements of the law. It is not, however, necessary at present to inquire with whom the discretionary power referred to is lodged. It is sufficient to say that it is not vested in the comptroller. The only power conferred upon that official by the section of the Charter alluded to, is that of determining the “ adequacy and sufficiency” of the proposed sureties, and of the “justification and acknowledgment.” The law has charged him with no other duty, and given him no other power or authority with
Again, it is urged that mandamus doeshot lie, because the relator has an adequate remedy, by action at law, for damages, either against the city or the comptroller, or'both. The general rule, undoubtedly, is that a writ of mandamus will not be awarded where the party has another complete remedy at law. There are, however, some exceptions. Executive and ministerial officers and corporations may be compelled by mandamus to perform the duties imposed upon them by law, although a right by action may exist (The People agt. Mead, 24 N. Y., 114; McCullough agt. The Mayor of Brooklyn, 23 Wend., 457; The People, &c., agt. Havemeyer, 47 How., 494). In the present case, assuming that the city would be liable in an action, we do not think that the tax: payers at large should be mulcted in damages because an officer of the corporation refuses or neglects to perform a duty imposed on him by law; nor do we think that the relator should be compelled to resort to an action against the offending official which might, perhaps, prove to be an inadequate remedy (The People agt. Mead, supra ; The People agt. The Supervisors, &c., 10 Wend., 363). The proper and appropriate remedy in such a case is a mandamus.
It is true the comptroller, in the performance of the duty of passing upon the sufficiency of the sureties, necessarily exercises judgment and discretion; consequently the act must be deemed to be a judicial one. This court will not, therefore, compel him to determine the question of sufficiency in a particular way; otherwise, the judgment of the court would be substituted for that of the comptroller. The writ of mandamus will be awarded to compel subordinate tribunals, or officers acting judicially or exercising discretionary powers, to proceed in a matter or adjudicate thereon, without, however, controlling the exercise of their judgment or discretion
The order of the special term should be reversed, with costs, and a peremptory writ of mandamus awarded, in accordance with the foregoing opinion.
Labrémose, J., concurred.