
    The People of the State of New York ex rel. The Buffalo Paving Company, Respondent, v. James Mooney and Others, Constituting the Board of Public Works of the City of Buffalo, Appellants.
    
      Buffalo — board of public works — discretion to delay entering into a contract ordered by the common council — mandamus requires a clear legal right and a want of remedy at law — Laws 1891, chap. 105, chap. 1, tit. 10, §§ 271, 272, 283.
    Upon a proceeding by mandamus to compel the hoard of public works of the city of Buffalo to execute and deliver to the relator, The Buffalo Paving Company, a contract for the paving of Roesch avenue in that city, it appeared that the board of public works had under the city charter charge and control of locating, paving and repaving all streets, except such as were placed in charge of the park commissioners, and that they had recommended to the common council that Roesch avenue should be paved with American bituminous rock pavement, and were directed by that body to ¿nter into a contract for the doing of that work, which had been let to the relator, but that the board refused to enter into the;Contract, alleging that 'Roesch avenue was likely to be converted into a boulevard and be made a part of the .park system of the city, in. which event the paving would be useless, which question as to whether or not the contemplated change would be made, it seemed likely could be definitely determined by May, 1896, before which time the relator could not proceed with the work; the board of public works claiming under the circumstances to have a discretionary power to disregard the directions of the common council.
    
      Held, that a discretionary power did exist, to á certain extent, in the • hoard of public works,, and that its action in refusing to make the contract; under the circumstances, was pi'opef;
    
      That while the charter prescribed that when the common council ordered work done, a contract for it should be made by the board, yet a situation might exist and had arisen where, after an. improvement had been ordered by the common council, and before the contract was entered into, it had become' hurtful to the • interest of the city to carry out the improvement;
    That in such a case the board was. justified in using every precaution to prevent an unnecessary expenditure of public moneys;
    That if the relator had a clear legal right to the contract then it had an adequate ' remedy at law in an action against the city for damages, while if, on the other hand, its legal right was not clear it Was not entitled to a writ 'of mandamus.
    That it was erroneous to grant the writ of peremptory mandamus.
    Appeal, by the defendants, James Mooney and others, constituting the board of public works of the city of Buffalo, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the ’ clerk of the county of Erie on the 31st day of January, 1896, directing that a peremptory writ of mandamus issue commanding the defendants to execute and deliver to the relator a certain contract for the paving of Koescli avenue, in the city of Buffalo.
    
      James L. Quackenbush, for the appellants.
    
      Emory E. Close, for the respondent.
   Adams, J.:

The charter of the city of Buffalo was subjected to a general revision by the Legislature of this State in 1891, and so far as material to the issues involved in this proceeding its various provisions Will be found in chapter 105 of the Laws of that year. Chapter 1 ■of title 10 of the revised charter creates a department of public works, to consist of three commissioners, whose duties and powers are clearly defined. Section 271 provides : “ The board of'public Works shall have 'charge and control: '

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3. Of locating, laying out, opening, constructing, altering, regulating, grading,, regrading, paying, .rejSaving,. curbing, guttering, repairing, cleaning, sweeping' and sprinkling all streets, avenues^ .places, alleys, and roads (except such as are placed in charge of the park commissioners) ”—and by section 272.it.is further provided : When any work or improvement, general or local, prescribed in this title, is necessary or advisable, the- board may recommend the same to the common council, with or without plans, specifications and descriptions. The common council may thereupon order the work done, or may order that plans, specifications and descriptions shall he furnished with or without estimates of costs or bids from responsible parties who will contract with the city to do the prescribed work. The common council may order any work or improvement, either with or without the recommendation of the board of public Avorlcs, but when such work or improvement is ordered in accordance with plans, specifications or descriptions, a contract therefor shall be made by the board, except where it is authorized to do the work itself. All work and improvements ordered shall be under the direction and supervision of the board, and when it shall .make report to the common council of its action, the council shall provide for the payment therefor, either from the general fund, or by local assessment, or both, as in this act prescribed. And no such work shall- be executed until payment therefor has been provided, as required by this act. It shall make a special report of any work done or contracted for, when required by the common council or mayor, and a general monthly report to the common council of its transactions for the previous month.”

It appears from the undisputed facts of this case that the defendants, who constituted the board of public works of the city of Buffalo, duly recommended to the common council that Boesch avenue in that city should he paved with American bituminous rock pavement, and such proceedings were thereupon had, in conformity to the various requirements of the charter, that the rvork Avas let to the relator for the sum named in its bid, to wit, $37,543, ■and the defendants were- directed to enter into a contract with the relator for the performance of such work, but in the exercise of a •.discretionary power which they insist resides in their board, they have failed to comply with such direction, for reasons Avhich are more particularly set forth in their opposing affidavits. The. first question, therefore,-which is presented for our consideration is whether or not the charter of the city of Buffalo invests its hoard nf public works with any discretionary power to act in this matter an - disregard of the directions . of the common council. A brief examination ■ of such of the provisions of that instrument as have been already referred to, will, we think, remove whatever doubt arises as to the power which the Legislature intended to confer upon this department of the municipality, and will also make plain the limits sought to be imposed upon its exercise.

By the language of section 271 it seems that the board of public works has charge and control of locating, paving and repaving all streets "except such as are placed in charge of the park commissioners, and the fair import of this language is, that it shall exercise a supervisory power and control over the various improvements and work specified — that is, it shall ascertain, and, to a certain extent determine, when any public work is necessary, and shall see to it that, when directed by the common council, it shall be performed in-such manner as may best meet the requirements of the city and its citizens, and, in cases where the expense of such work does not exceed the sum of $5.00,- it would also, seem, by the provisions of section 283, that the board is a law unto itself, and may require its performance without first obtaining the sanction of the common council ; but, on the other hand, this section expressly prohibits it from incurring any expenditure, or entering into any contract involving or exceeding that sum, unless the consent of that body is first obtained. Thus it will be seen that the right of independent action upon the part of the board is somewhat circumscribed, and a further reference to section 272 will show quite conclusively that its authority; generally speaking,, is subsidiary to that of the common council: When it deems any public work on the streets necessary, it may recommend the same to the common council, with or without plans, and the latter body may then, in the exercise of its discretion, approve or disapprove of such recommendation; and the common council may also direct the performance of any public work or improvement without the recommendation of the board of public works,, but when any such work or improvement is ordered in-accordance with plans, specifications or descriptions, “a "contract therefor shall be made by the board, except where it is authorized to do the work itself,” and the portion of the section here quoted from is followed hy a provision that all work and improvements ordered shall be done under the direction and supervision of the board. This language seems capable of but one construction, and that is, that the common council is invested by the city charter with exclusive authority and control in the matter of directing all public work and improvements, save in the cases provided for by section 283, while, as has already been shown, the duty imposed upon the board of public works is, in the main, supervisory in its nature. But with this conclusion established, it by no means follows that the latter body is utterly divested of all discretionary power, for in a certain and limited sense this is not so. The charter, it is true, directs that when the common council orders certain worl$ or improvement in accordance with plans, specifications or descriptions, a contract therefor shall be made by the board, but it is conceivable that after a public improvement is thus ordered and before a contract is entered into, there might occur such a change in the condition of affairs as to render it plainly impolitic and contrary to the- best interests of the municipality, whose servants the commissioners of public works are, to proceed with the same; and.can it be claimed that in such an emergency they would be deprived of all discretionary power %

This proceeding furnishes an apt illustration of the idea sought to be advanced. The application for a peremptory Writ of mandamus is met by opposing affidavits, the contents of which, in the circumstances of the case, must be accepted as true (People ex rel. P. C. Sav. Bank v. Cromwell, 102 N. Y. 477; The People ex rel. Lewis v. Brush, 146 id. 60), and these affidavits show that since the adoption of the resolution by the common council the fact has been brought to the attention of the board of public works that Boesch avenue is quite likely to be soon converted into a boulevard and made a part of the park system of the city, in which event it is made to appear that the paving thereof under the existing resolution would be useless and would involve the city in great loss, and that even if the contract were executed the relator could not proceed with the work until the month of May next, before which time, we are led to infer, it can be definitely determined whether or not the contemplated change is to take place. This condition of affairs certainly demanded some action upon the part of either the common council or the board of public works. It would seem, therefore, to require no argument to justify the commissioners in taking the position they did, and using every precaution which was available to prevent the unnecessary expenditure of public moneys, and their action in the premises was but the exercise of the right of.' ■judgment in a case somewhat exceptional in its circumstances, but nevertheless one in which such right must necessarily exist. This justification is the more readily accepted in tins case for the reason that the refusal-of the board to ..enter into a contract with the relator can in nowise operate-to..the- prejudice of, the latter. Indeed, it is more than doubtful whether -it may resort to the remedy invoked for the .protection of its interests, for if it is able to -establish a clear ■legal right, to the contract in. question, it has an adequate remedy, at .-law- by action against the city to recover damages, while, if such .right is not clear, a writ of mandamus is net available. (People ex rel. Lunney v. Campbell, 72 N. Y. 496; Lord v. Thomas, 64 id. 107; People ex rel. Ryan v. Aldridge, 83 Hun, 279.)

The views here expressed lead to .a reversal" of the order appealed '.from.and.a dismissal of the writ.*. . . . ;. "

All concurred, except Ward, J., not sitting:

Order-reversed, with 'costs and disbursements,, and writ dismissed, with "fifty-dollars costs. ■ • . .Y: :’■!  