
    Warner-Quinlan Asphalt Company, Appellant, v. John N. Carlisle, as Commissioner of the New York State Highway Commission, Respondent. (Action No. 1.)
    Third Department,
    November 12, 1913.
    Highway Law, section 25 — specifications for highway work restraining competition—right of producer of material to enjoin letting of contracts — taxpayer’s action.
    Under section 25 of the Highway Law (added by Laws of 1913, chap. 80), providing that “ In the construction, maintenance or repair of State or county highways, no patented material or article or any other material or article shall be specified, contracted for or purchased, except under such circumstances that there can be fair and reasonable opportunity for competition, the conditions to secure which shall be prescribed by the Commissioner of Highways,” a producer of liquid asphalt, which answers all the tests prescribed in specifications for the construction of highways, except that they call for a solid asphalt, which is produced only by a single company and its subsidiaries, has a sufficient special interest to authorize a suit upon its part to enjoin the Highway Commissioner from letting contracts under such specifications.
    Such a suit cannot be maintained purely ás a taxpayer’s action.
    Appeal by the plaintiff, Warner-Quinlan Asphalt Company, from an order of the Supreme Court, made at the Columbia Special Term and entered in the office of the clerk of the county of Albany on the 28th day of August, 1913, denying its motion for an injunction pendente lite.
    
    
      Henry A. Rubino, Benjamin N. Cardozo and Walter H. Pollak, for the appellant.
    
      Thomas Carmody, Attorney-General, and James A. Parsons, Deputy Attorney-General, for the respondent.
   Smith, P. J.:

This action is brought to enjoin the letting of a certain contract for highway repair on the ground that the proposals for bids contained specifications which were in violation of section 25 of the Highway Law (Consol. Laws, chap. 25; Laws of 1909, chap. 30), as added by section 14 of chapter 80 of the Laws of 1913. That section reads as follows:

“ Patented material or articles. In the construction, maintenance or repair of State or county highways, no patented material or article or any other material or article shall be specified, contracted for or purchased, except under such circumstances that there can be fair and reasonable opportunity for competition, the conditions to secure which shall be prescribed by the Commissioner of Highways.”

The contention of the plaintiff is that in the specifications for the contract which is sought to be enjoined was included the description of an asphaltum which precluded any opportunity for competition and was procurable only from the Barber Asphalt Company, a subsidiary of the General Asphalt Company. The plaintiff is the producer of a liquid asphalt which from the papers would appear to answer all the tests prescribed in the specifications, except that the specifications call for a solid asphalt, which is produced only by the single company, the General Asphalt Company and its subsidiaries. From the affidavits it would appear that this solid asphalt is nothing else than the liquid asphalt which has been many years exposed, so that many of the oils have been evaporated therefrom and which requires the addition of further oils in order to be brought back into a state in which it can be used for the purposes of a highway, while the liquid asphalt not having been exposed has retained within itself these oils which make it adaptable for the purposes of a highway without such treatment. These facts seem to be supported by the moving papers and were not questioned by the Special Term. The denial of the injunction was put upon two grounds: First, that a public work should not be interfered with; secondly, that the plaintiff had not sufficient interest to authorize an action upon its part for an injunction. The first ground, as thus stated, would seem to be obviated by the advance of the season, so that the roads cannot in any event be repaired for many months. The sole question, then, for our determination is whether the plaintiff has a sufficient special interest to authorize an action upon its part enjoining the Highway Commissioner from letting these contracts.

Whatever may have been the theory upon which this action was originally started it is now admitted by the plaintiff’s counsel that it cannot be maintained purely as a taxpayer’s action; that a taxpayer’s action lies only as against municipalities and does not lie against the State. That the People of the State through the Attorney-General could bring the action, if in the making of these specifications any law were violated, would seem to be undoubted. It is claimed, however, that this right of action rests also with the plaintiff because of the threatened injury to his individual rights. The plaintiff admits that it would be lawful for the defendant to place in these specifications any test as to quality or durability, but denies the right to add any other qualification which does not go either to quality or durability which would preclude its right or the right of any contractor to bid therefor upon the basis of the use of the plaintiff’s product. In Long v. Johnson (70 Misc. Rep. 318) it is stated that an officer-of the State cannot be enjoined at the suit of an individual taxpayer “who has no special rights or grievances aside from the great mass of taxpayers. ” In Roosevelt v. Draper (23 N. Y. 323) such an action on behalf of an individual is restricted to one who had “ some individual interest distinct from that which belongs to every inhabitant of the town or county,” and it was held that the owning of taxable property was not a sufficient interest to authorize an individual action. In Molloy v. City of New Rochelle (198 N. Y. 402) a taxpayer was allowed to bring an action to prevent an official illegal act. It was there held that a taxpayer otherwise qualified to maintain such an action is not otherwise disqualified “ because specially and peculiarly interested in the event.” .In that case the only interest to which reference was made was the interest of a contractor whose bid for city work was wrongfully excluded. We are cited to no cases and have been able to find none where the precise question has arisen whether the owner of a product which is wrongfully excluded from competition in a public contract has a special interest as would authorize it to bring an action restraining the illegal letting of the contract. Under our system for the building of State highways the use of asphaltum will probably be very great, and in the contracts sought to be enjoined is not inconsiderable. If, as is contended, the plaintiff has a product which can meet every test of quality and durability in the asphaltum called for in the specifications and is wrongfully precluded from furnishing such asphalt by the failure of the defendant to observe the law in making the specifications so as to insure competition, it would seem that the plaintiff had a very vital interest to protect in demanding that the defendant observe the requirements of the statute in making his specifications. A material part of its market has been taken from it. In all the authorities which define what property may not be taken from a citizen without due process of law, the free right to market his property is recognized as one of the rights protected by the Constitution. In People v. Hawkins (157 N. Y. 7) Judge O’Brien, in writing for the Court of Appeals, says: The citizen cannot be deprived of his property without due process of law. The principle embodied in this constitutional guaranty is not limited to the physical taking property. Any law which annihilates its value, restricts its use, or takes away any of its essential attributes, comes within the purview of this limitation upon legislative power. The validity of all such laws is to be tested by the purpose of their enactment and the practical effect and operation that they may have upon property. A law which interferes with property by depriving the owner of the profitable and free use of it, or hampers him in the application of it for the purposes of trade or commerce, or imposes conditions upon the right to hold or sell it, may seriously impair its value, against which the Constitution is a protection.” The prevailing rule in other States would seem to authorize this action as an action in behalf of the taxpayer only. (See 4 Dillon Mun. Corp. [5th ed.] §§ 1579, 1588.) While the rule is otherwise held in this State it would seem that any right sufficiently tangible to be within constitutional , protection should be sufficiently tangible to give a standing to a party to enjoin an illegal infringement of this right. It is not simply a question of a prohibition to become a bidder upon this work. The quotation by the learned justice at Special Term in his opinion from the case of People ex rel. Ayres v. Board of St. Auditors (42 Mich. 428) was pure dictum in that case, and I doubt its soundness. In the case at bar, however, this goes beyond the mere right to bid. It restricts what would otherwise be an open market for the plaintiff’s property, and this in violation of the requirement of our statute. Such an interest may be a slight one, or it may be a vital one to this plaintiff. In my judgment, when added to the interest of the plaintiff as a taxpayer of the State, it should be sufficient to move the court to require that the officer of the State should conform to the law in prescribing these specifications for these contracts.

The order should be reversed, with ten dollars costs and disbursements, and motion granted.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, without costs. Order to be settled on notice before Smith, P. J.  