People ex rel. North v. Featherstonhaugh (172 N.Y. 112, 1902)

Haight, J.

The court, upon the petition of the relator, issued a writ of certiorari to review the proceedings of the public improvement commission of the city of Cohoes in awarding a contract to the Yew York & Bermudez Co. to curb and pave Saratoga street in that city from the south line of Newark street to the Mohawk river.

On the 31st day of March, 1901, the public improvement commission of the city of CohoeS caused a map and general plans, with the specifications of the work to be done for the paving and curbing of Saratoga street in that city, to be filed in the office of the clerk of the city, together with an estimate by the engineer of the cost of the improvement. They then passed resolutions unanimously directing the improvement to be made, and that notice be given for a hearing of. all persons interested ; thereupon a notice was published in the official paper of the city, in accordance with the provisions of the statute, of the determination made by the commissioners to pave Saratoga street between the points named with vitrified brick, and to construct a granite curb on each side of the street with receiving basins, etc., and that a meeting of the commission would be held at their rooms in the city hall on the 4th day of April, 1901, to hear all persons interested in the improvement.

On the day named for the meeting the relator and others appeared and filed a protest against the construction of the curbs with granite, and asked that the blue stone curbing, already in, be retained; and also filed a request that the pavement be made of asphalt blocks instead of vitrified bricks. Thereupon the hearing was, upon the request of the relator, adjourned until the 10th of April, 1901, at which time the testimony of several witnesses was taken, bearing upon the question of the necessity of the change from blue stone to granite curbing. At the conclusion of the testimony there was a further adjournment until the 24th of-April, 1901, at which time bids were received, pursuant to a notice previously published, inviting bids for the proposed improvement with granite curbing and with the paving of either sheet asphalt, asphalt blocks, granite, Medina sandstone, repressed vitrified brick and pressed vitrified block. The relator then made further objections to the proceedings covering all the points which we shall hereinafter consider ; thereupon the bids were opened, and subsequently the contract was awarded to the Hew York & Bermudez Co. to pave the street with sheet asphalt and to construct the curbs of granite for the sum of $34,753.72.

The public improvement commission of the city of Oolioes was created by chapter 227 of the Laws of 1898, and derives its powers from the provisions of that act, as amended by chapter 550 of the Laws of 1899, chapter 213 of the Laws of 1900 and chapter 632 of the Laws of 1901. The amendment of 1901, having become a law after the contract herein referred to was issued, need not now be considered. The commission being a statutory body, we shall assume that the measure of its powers is confined to the legislative acts which called it into being.

The first contention on behalf of the relator is, that the determination of the commission to construct a granite curb along Saratoga street at the lot owners’ expense was without legal authority, and was not new work, but the repair of old work. We regard this contention as raising a question of fact, which was disposed of by the court below and is not reviewable in this court. The evidence tended to show that the old curbing was of blue stone; that some portions of it had been in use for many years and was badly out of repair; that none of it was set in a concrete base so as to prevent water from getting underneath ; that the commissioners had determined to put the pavement and curbing upon a concrete base; that blue stone is composed of layers, some of which admit of the penetration of water, and when it freezes the stone is liable to crack; that in case of cracking it would necessitate the taking up of the curbing out of the concrete and the insertion of new curbing, which would largely increase the original cost; that granite curb when dressed and set in concrete does not allow water to reach its base, and that it is not subject to cracking or deterioration by reasons of the action of water or frost.

After the conclusion of the testimony upon the subject, the commissioners made a personal examination of the existing curbing and thereafter determined to construct the new curb of granite instead of blue stone. In their return they state that the reasons for the determination were “ That in their opinion, for the pavement on a concrete base, it would be necessary to use a curb stronger than the blue stone, and a stone which is not a layer or sandstone; that, in their opinion, the Avater falling upon the top of blue stone curb frequently gets in between the layers and a frost occurring under those conditions will separate the layers ; and it is, in their opinion, impossible to distinguish betiveen blue stone Avhich Avill separate and one which will not.” W e think it cannot be held that there Avas not any evidence to sustain the determination of the commissioners. Under the statute the commission is given poAver to cause any street and highway in the city to be paved for the work increased in any wise by reason of such provisions. The contract entered into only provides that the contractor will faithfully comply with-all the provisions of the Labor Law of the state which may now be in force. The decision of this court in the Rodgers case, having been previously rendered, the provision of the Labor Law with reference to the payment of the prevailing rate of wages was not in force at the time the bids were made or the -contract executed. The fact that the commissioners gave notice that they would not attempt to enforce the Labor Law, which the court had held unconstitutional, and the further fact that the bid made by the company to whom was awarded the contract was not increased by reasons of the provisions of that law, indicate very clearly that the taxpayers of the city, or the abutting owners upon the street sought to be improved, have suffered nothing by reason of the provisions of the Labor Law to which attention was called in the specifications. Some of the provisions of the Labor Law are undoubtedly constitutional and are still in force, and consequently the provisions of the contract to the effect that the contractor will observe those provisions, which may now be in force, furnish no ground for just complaint. A contract, the consideration of which is based upon a statute which is unconstitutional, is doubtless void. But the contract in this case does not depend upon the Labor Law for its consideration. The provisions of that statute incorporated into the specifications are extraneous matters which have no material effect upon the main provisions of the contract, and cannot affect those provisions unless it may tend to increase the cost of the work. . The contractors must be presumed to have known the law, and consequently to have known that the provision with reference to the rate of wages was unconstitutional. They are deemed, therefore, to have made their hid with this understanding, even independent of the notice wliich was given to them by the commissioners. Their bid was not in fact increased by reason of the Labor Law, as appears from the testimony to which we have alluded. We think, therefore, that the provisions of the Labor Law which have been held unconstitutional may be. eliminated from the specifications, and that the contract may stand unimpaired and in full force and virtue. This was in effect held in the case of People ex rel. Rodgers v. Coler (supra). In that case the contractor sought a peremptory writ of mandamus to compel the comptroller to deliver to him a warrant on the chamberlain for the amount due him upon the contract, which was a Contract in all essential features like the one now under com sideration. The comptroller refused to deliver the warrant for the reason that the contractor had not complied with the provisions of the contract, which required him to pay the laborers employed by him the prevailing rate of wages. It was held that that provision of the Labor Law which had been incorporated into a contract was unconstitutional and void; but that the remaining part of the contract was in full force, and the mandamus was ordered to be issued.

The provisions of the specifications to the effect that laborers must be paid in cash and not in store orders is a requirement of the statutes which, as yet, has not been condemned in this state. The objection taken to this s]3ecification was that it is erroneous, unreasonable, illegal and unauthorized. It is not unreasonable or illegal if authorized by a statute. Our attention has been called to no provision of this, or any of the charters of the cities of this state, which permits the treasurer or other financial officer of a municipal government to keep a store and pay the employees of the city with orders on the store. It may be different, however, with contractors; but as we have seen, this specification is required by the statute, and no objection was taken, upon the ground that the statute was unconstitutional, and it is not the practice of this court to determine the constitutionality of statutes unless the question is distinctly raised by the record.

Finally, it is contended that the determination of the commissioners to pave with sheet asphalt and to curb with granite was made by the commission without an opportunity of the abutting property owners to be heard on such determination. It is true that in the notice given for a hearing it was stated that the commission had determined to pave with vitrified brick, and a hearing, was had upon that notice. The hearing, however, covered all matters pertaining to the improvement, the kind of pavement to he used, as well as the kind of curbing. The statute makes provision for the hearing, and then concludes: “ Said commission shall have the power to change, alter, add to or modify their first and original determination in reference to such improvement, and shall also have the power and right to change their opinion in reference to what portion of the whole expense should be paid by local assessment.” After the hearing it appears that the commission did change their determination as to thé character of the pavement it would adopt, and finally concluded to use sheet asphalt instead of brick.

Other questions have been discussed in the briefs of counsel which we have considered, but they present no error that requires a reversal of the proceedings, and we do not deem it necessary to specifically refer to them.

In view of the fact that a large number of persons will become interested as taxpayers when an assessment is made 'to pay for the improvement contracted for, we have thought it wise to consider this case upon the merits. We are, however, of the opinion that the proceedings sought to be reviewed are neither judicial nor quasi-judicial, and, therefore, under the well-settled rules are not subject to review by certiorari. (People ex rel. Trustees, etc., v. Bd. Supervisors of Queens Co., 131 N. Y. 468; People ex rel. O' Connor v. Bd. Supervisors of Queens Co., 153 N. Y. 370, 374.)

The appeal should, therefore, be dismissed, with costs.

Parker, Oh. J., Gray, O’Brien, Yann, Cullen and Werner, JJ., concur.

Appeal dismissed.