
    Theodore E. Basselin et al., Plaintiffs, v. Francis E. Pate, as Commissioner of Highways of the Town of Crogan, and the Owego Bridge Company, Defendants.
    (Supreme Court, Lewis Special Term,
    January, 1900.)
    1. Highway Law — Consent of town board to the building of a bridge.
    The Highway Law does not require any particular form for the consent of a town board to the building of a town bridge; and where the board formally resolves that an unsafe bridge shall be replaced by a new one, the town highway commissioner ha's sufficient authority to contract for the bridge, although the board subsequently attempted to delay action in order that it might procure legal advice in the matter.
    
      
      12. Taxpayers’ action for waste — Fraud must be shown.
    A taxpayers’ action for a waste of town property cannot be maintained unless the acts attacked were done without power, or unless fraud, or bad faith amounting to fraud, is charged and proved.
    Negotiations of a highway commissioner with a bridge company, in regard to a contract for a town bridge, considered and held not to indicate any fraud, collusion or bad faith upon the part of the commissioner.
    3. Same — Belief.
    Where no fraud is proved in such action, the court will not consider the effect of a contention of the plaintiffs that the bridge contract was not valid because it was incomplete by being insufficient in form, for, assuming the contention to be true, no relief can be afforded upon that ground in such an action.
    This action is brought by plaintiffs as taxpayers of the town of Orogan in effect to prevent the construction of a bridge over the Beaver river in said town by the defendant Bridge Company under an alleged contract made by it with the defendant Pate as commissioner of highways of said town. It is brought upon the theory and in the form of an action to restrain waste. The alleged contract provides for the construction of said bridge 'for $3,500, and purports to have been made under section 10 of the Highway Law, which at the time'the contract was made read as follows:
    
      “ Section 10. If any highway or bridge shall at any time be damaged or destroyed by the elements or otherwise or'become unsafe, the commissioner of highways of the town in which such highway or bridge may be 'situated may with the consent of the town board cause the same to be immediately repaired or rebuilt,” etc.
    Plaintiffs’ counsel in 'his brief upon the submission of the case states three grounds upon which the relief asked for should be granted. First, that no consent of the town board to the building of'the bridge was given as required by statute. Second, that the contract under which the parties were acting was not a valid contract because not completed. Third, that the alleged contract was corrupt and made for'the purpose of defrauding the town.
    Elon R. Brown, for plaintiffs.
    Oscar B. Glezen, for defendant Bridge Company.
    
      W. A. Purcell, for defendant 'Pate.
   Hiscock, J.

I think that the following facts may he fairly regarded as established by the evidence in this case, 'many of them without contradiction, namely:

That prior to April 24, 1897, the old bridge 'at the point in question had become unsafe; that on said day at a meeting of the town board duly 'held it was by specific vote decided that said bridge was unsafe, and it was voted to build a new bridge of iron across the Beaver river at the point in question; that it was then voted that the board adjourn for one week; that the agent of the defendant Bridge Company appeared'at said meeting of the town board and attempted to secure action by it in favor of the construction by his company of one of its'bridges showing illustrations of various kinds of bridges; that amongst others he exhibited a picture or illustration of a bridge'to be erected at a cost of $3,500; that subsequently to one or more members of the board privately he stated in substance that if the board'would take action favorable to the construction of the bridge by his company it would erect the $3,500 bridge for $3,000, but this did not take place in the presence of, and so far as the evidence discloses, was not known to the defendant commissioner; that after spending the night'at the same hotel early the next morning the agent of the Bridge Company and the defendant commissioner went to consult lawyers with reference to the right of the latter to make a contract for the construction of the bridge; 'that they found one lawyer whose advice was not sufficiently definite or certain and failed to find another one whom they sought, and finally without further legal- advice'the contract in question was made between the agent and the commissioner; that said contract 'provided as hereinbefore stated for the construction of a bridge for $3,500, and it was on its face indefinite and uncertain in some respects, but at the'time of its execution it was agreed that a “ strain sheet ” should be furnished by the Bridge Company to the commissioner which 'was done a few days thereafter although the same has not been formally annexed to the contract. The agent of the Bridge Company paid the expenses of the highway commissioner upon the trip to seek advice just mentioned and also gave him an 'undertaking to protect him against personal liability, but the main purpose of the latter was to guard against liability by reason of a resolution theretofore passed by the town board that no job should be let for more than fifteen dollars without advertising for bids. The bridge agreed to be constructed was fairly worth the sum provided. Subsequently and on May 4, 1897, the town board again met and a motion was adopted that the minutes of its prior meeting hereinbefore referred to which read, “ That this board adjourn for one week,” should be so amended as to read “ That this board adjourn until the 4th day of May so that the board can get counsel and find out what their duty is in regard to building bridges and letting jobs for bridges.” A motion was also adopted that the resolution to build a new bridge adopted at the prior meeting be reconsidered and also resolutions were adopted in effect repudiating the contract between the two meetings made by the highway commissioner with the defendant Bridge Company.

In support of his first contention that no consent of the town board to the building of the bridge was given as required by statute, I do not understand that plaintiffs’ counsel claims that the proceedings taken by the town board at its first meeting in effect determining that the old bridge was unsafe and that a new bridge of iron should be built did not, standing alone and by themselves, constitute a sufficient consent under the statute to enable the contract in question to be made. I do not think that he could successfully so claim. The statute does not prescribe or require any particular form of consent by the town board to the rebuilding of a bridge in such a case as this. It was the evident purpose of the statute that a highway commissioner should not be permitted to create'obligations against the town for the rebuilding or repairing of bridges upon the theory that they were unsafe until the town board should have passed upon that question and dptermined in favor of the repairs or rebuilding. The town board in question did fully and distinctly decide upon these questions, namely, that the old bridge was unsafe and that a new bridge should be built.

The counsel seeks to sustain this proposition rather by connecting the proceedings of the town board at its second meeting with those taken at the first one and by making them a continuation thereof; by arguing that the proceedings at the first meeting were inchoate or tentative and made subject to some such consideration or reconsideration as was attempted at the second meeting, and that the contract therefore made between the two meetings was subject to the action taken at the latter one. I think that it would be straining the evidence too hard to uphold this view to the extent urged by 'counsel of invalidating this contract. The resolutions at the first meeting in favor of building the bridge were definite, distinct and complete upon their face. The resolution for an adjournment of a week as spread upon the minutes was complete and contained no provision for such further action as was attempted by the town board. There was nothing in the minutes to advise the defendants that the town board had not reached a final decision in the matter and that they ought to wait for such action. The resolution adopted at the second meeting correcting the minutes so as to make the resolution of adjournment read in effect that the adjournment was taken for the purpose of consulting counsel to ascertain what the duty of the town board was with reference to building bridges, etc., produces the impression of 'being an afterthought. It would seem as if the town board after taking action at the first meeting in favor of building a bridge had before the second meeting learned that there was opposition to such building and criticism of their conduct in authorizing it and had then attempted to reconsider their action more than the facts authorized them to. Even if it should be assumed that the resolution of adjournment as corrected at the second meeting, had been adopted and originally spread upon the minutes, I do not think that it would permit a cancellation of a contract made in the meantime under the resolutions adopted at the first meeting. As I have said, those resolutions fairly and definitely authorized the making of this contract. Assuming that after these resolutions were so adopted. the town board had passed a resolution to adjourn for a week to consult counsel with reference to their power to make the contract and had notified defendants to that effect before the contract was executed, the fair inference would be that the board desired to ascertain whether its action in authorizing the construction of a bridge was authorized and legal, and if it was, that such action should stand. This I think is the legal effect of what took place. The resolutions were adopted for the construction of the bridge; the town board had the power to adopt those resolutions; its determination to adjourn for a week to consult counsel with reference to its power to take such action would not of itself modify or impair that action and resolutions, and it having the power to pass them I think its duty was discharged and performed and completed when it did pass them, so as to authorize a contract made in pursuance of the power therein contained. Further than this all of the law submitted in this case is against the proposition that the town board has ever ’rescinded its decision to have a new bridge built, even assuming that the contract made between the defendants was subject to such rescission at the time of the second meeting. The resolution adopted at the second meeting was simply to reconsider the resolutions adopted at the first meeting in favor of building a bridge. The first resolutions were not in any other way repealed or rescinded.

It is held in Ashton v. City of Rochester, 60 Hun, 372, in the case of resolutions adopted by municipal authorities that a vote simply to reconsider a prior resolution without further action is not sufficient to rescind it or prevent it from being followed. Applying the reasoning of that case to this one the resolutions by the town board in favor of building a new bridge have never been rescinded or cancelled and after the second meeting was held were still an authority for the execution of the contract, in question.

I pass now to the consideration of the third proposition made by plaintiffs for maintaining this action, namely, that the alleged contract between the parties was corrupt and made for the purpose of defrauding the town. Plaintiffs as taxpayers can succeed in this action only by alleging and proving fraud or collusion or bad faith in the making of the contract to- which the commissioner has been a party. Ziegler v. Chapin, 126 N. Y. 342.

The provisions of the Code authorizing an action by a taxpayer to prevent “ waste of or injury to ” the property of a municipality is confined to cases where the acts complained of are without power, or where corruption, fraud or bad faith amounting to fraud is charged. The words “ waste ” and “ injury ” include only illegal, wrongful or dishonest action.

An action by a taxpayer of a municipality to restrain the governing body from official action clearly within its power and discretion and without any charge or allegation of fraud, collusion, corruption or bad faith, cannot be maintained, although it be averred that such intended action is unwise and without due regard to economy. Talcott v. City of Buffalo, 125 N. Y. 280.

Can it be fairly deduced from the evidence in this case that the defendant commissioner was guilty of fraud, or bad faith amounting to fraud, in making the contract for the construction of this bridge? I have no right to suppose such fraud or bad faith unless it is to be legitimately inferred from the evidence. The burden rested upon the plaintiffs to- establish those propositions fairly and legitimately by legal evidence.

I have already stated the principal facts which it seems to me may be found from the evidence bearing on this question. I may briefly recapitulate them here. The town board passed resolutions condemning the old bridge and authorizing the construction of a new one; the representative of the Bridge Company and the commissioner of the town spent the night of the day in which that action was taken at the same hotel, and early the next morning started out for the purpose of enabling the- commissioner to take legal advice as to his power to make a contract for the bridge. Hie consulted one lawyer, missed another one, and without further advice made a contract for the construction of the bridge which was somewhat indefinite in its terms and whereby he bound the town to pay five hundred dollars more for the bridge than the price at which it was privately offered to- certain of the town board to construct it if action was taken immediately on the day of the meeting of the town board. So far as appears, the commissioner did not know11 of this private offer at a reduced price. His expenses upon the trip to consult a lawyer were paid by the representative of the Bridge Company and a bond was executed to- him to indemnify him against personal liability, but this was intended to relate principally at least to a resolution theretofore adopted by the town board against making contracts in excess of a certain amount without advertising, and which resolution concededly did not apply to this case.

As against these facts there is evidence proving and none tending to disprove the fact that a new bridge was needed; there is evidence in favor of the proposition and none against it that the bridge covered by the contract was suitable and was well worth the price agreed to be paid therefor. There is no evidence that the commissioner received any personal advantage whatever from the making of this contract. I see nothing improper in the fact that he made the representative of the Bridge Company pay his expenses to Carthage and "Watertown instead of charging them to the town. It appears that upon the evening of the day when the town board held its first meeting dissatisfaction was expressed by some of the residents of the town over the proposition to build this bridge, but it certainly cannot be inferred from the evidence that' there was anything in this opposition which made the commissioner guilty of fraud or bad faith in making the contract in spite of it even if he knew of the feeling. As I have stated, there is no evidence that he knew of the offer at a reduced price made by the bridge representative to certain of the town board, but even if he did, I do not believe that I could properly find that it is evidence of fraud that the bridge representative said to certain people that if they would favor closing up a contract at once upon a certain day he would build a bridge for them for which he had previously asked $3,500 for $3.000, and then when they refused to do this and he finally made the contract he went back to his original price of $3,500, which it appears was a proper valuation.

In short, upon a consideration of all of these facts and of- all of the evidence in the case I am unwilling to say that the defendant commissioner has been fairly convicted of fraud or collusion or bad faith, which is the only issue presented to me. He very possibly may have attempted to make a contract for a bridge and create a liability against the town which is unsatisfactory to a majority of the inhabitants thereof. He may have been persuaded into acting without due deliberation and making a contract which is not entirely provident or well considered. He may have displayed bad judgment in attempting to carry out the authority which the statute gave him. ^But it is well settled that for these faults, if he has been guilty of them, this action cannot be maintained. The inhabitants of the town passed upon his judgment and capacity and willingness to carry out the wishes of the majority when they elected him to his office, and the courts cannot in such an action as this guard the taxpayers against any mistakes which they may have made in these respects.

The plaintiffs’ counsel urges as the second ground why this action should be maintained “ That the contract under which the parties were acting was not a valid contract because not completed,” and in support of this contention he urges upon his brief that the contract between Pate as highway commissioner and the Bridge Company was never completed; that the contract itself is incomplete because it lacks the plans and specifications, which- were never prepared or added; that to make a binding contract all the essential matters between the parties must have been agreed upon; that their minds must meet, etc., and that this has not been done in this case. In other words, he urges that no' sufficient or valid or binding contract was ever executed between the defendants for the construction of this bridge, and various proofs were addressed to this question upon the trial of this action. I have not considered this question and do not intend to pass upon it, because it does not seem to me to be properly or legitimately before me in this action. This is an action of waste in which the plaintiffs are seeking to restrain work under a contract upon the grounds that it was executed without proper authority and that it was tainted by fraud and bad faith upon the part- of the commissioner. The action presupposes and assumes that a contract in form has been made for the doing of the work but that it is subject to defects which entitle plaintiffs to- restrain action under it. The second ground just stated proceeds-upon the theory that no valid or sufficient- contract was ever made in form. If plaintiffs are wrong in this contention and the purported contract executed between the defendants was sufficiently definite and complete to constitute a contract and be binding then plaintiffs are entitled to no relief upon this ground. If, upon the other hand, they are right that no- contract valid upon its face was ever made between the parties; that the purported contract was too indefinite and insufficient to be binding or valid, and that therefore in effect there is no contract for the construction of this bridge, this action is in my judgment not the proper method of relief. If the defendant Bridge Company is attempting or shall attempt to construct a bridge in the town of Grogan without any valid contract for the construction thereof other questions will be presented and other methods of relief may be opened to the taxpayers of that town than those which can be considered here.

These views lead to a dismissal of plaintiffs’ complaint, with costs.

Complaint dismissed, with costs.  