
    The People of the State of New York ex rel. John Single Paper Company, Limited, Appellant, v. Ernest I. Edgcomb, as Chairman of the Board of Supervisors of the County of Onondaga, and Lieber E. Whittic, as Clerk of the Board of Supervisors of the County of Onondaga, Respondents.
    Fourth Department,
    May 2, 1906.
    Public officers — mandamus to compel supervisors to accept bond of bidder pn public contract — supervisors cannot require bidders on printing contract to use union label — bidder not estopped by clause in specification requiring use( of label.
    A requirement by a hoard of supervisors advertising for bids for the printing of its journal that the Allied Printing Trades Council label must be used by the printer is unlawful and against public policy as tending to create a monopoly by restricting competition to a special class of printers. A bidder who has been awarded the contract may by mandamus compel the board to accept his bond for due performance, although the bond is riot conditioned on the use of such label by the contractor.
    Although the hid was made on specifications containing such illegal requirement the bidder is not estopped from subsequently.asserting its illegality. McLennan, P. J., arid Kruse, J., dissented on opinion below.
    Appeal by the relator, the John Single Paper Company, Limited, from an order of the Supreme Court, .made at' the Onondaga Special Term and entered in the office of the clerk of the county of Onondaga on the 12th day of February, 1906, denying the relator’s application for a peremptory writ of mandamus.
    
      Frank Hopkins, for the appellant.
    
      William L. Barnum, and Ernest I. Edgcomb .and Lieber E. Whittic in person, for the respondents.
   Spring, J.:

The defendants are respectively the chairman and clerk of .the hoard of supervisors of the county Of Onondaga. The board at.its session in November, 1905, advertised for sealed bids for the publication of the journal of proceedings of the hoard for that year: The specifications contained the statement, “ Allied Prin ting -Trades Council label required to be used.” The relator submitted a bid, which was the lowest, and was formally accepted by the board. The specifications required the successful bidder to give a proper bond to be approved by the board. On;the fifteenth day of December the relator, in attempted compliance with this requirement,' presented to the board a bond which excepted from the obligations undertaken by - the obligor the use of the Allied Printing Trades Council label, and was rejected by the board solely because of that omission. •

On the twentieth day of December, the day of its final adjournment,-the board passed the following resolution: “That- the Contract for printing the Journal of Proceedings for the year 1905 be awarded to the John Single Paper Company upon- its filing with the Clerk of this Board a bond .conditioned; for the faithful performance of said work and deemed by the Chairman and Clerk to be in conformity with the specifications prescribed by this Board, according to advertisement, such bond to be in such form and with such conditions as shall be prescribed by them and to be filed within five days and approved by the Chairman and Clerk,” and further empowering the chairman and clerk to enter into a contract for such work “ if such bond is not filed and approved as above.”

On the tw'enty-third the relator, presented another bond to the respondents, in the main conforming to the one previously rejected, with a copy of the specifications attached, except’that the clause “ Allied Printing Trades Council label required to be used,” was stricken out.

The bond was disapproved on the ground that it was identical with the One rejected, and because it eliminated the clause, mentioned. Thereupon this proceeding was commenced -to'compel the respondents to accept said bond.

The Alhed Printing Trades Council label can only be used. by printing concerns which employ members of Typographical Union Ho. 55, and not one-half of the printers in Onondaga county belong to this union.

The requirement- that the label mentioned must be used when its use limits the bidders to members- of the particular union is against public policy and is unlawful. (Davenport v. Walker, 57 App. Div. 221; City of Atlanta v. Stein, 111 Ga. 789; Inge v. Board of Pub. Works of Mobile, 135 Ala. 187 ; State ex rel. R. M. F. Co. v. Toole, 26 Mont. 22; Paterson Chronicle Co. v. Paterson, 66 N. J. Law, 129; Marshall & Bruce Co. v. City of Nashville, 109 Tenn. 495 ; Adams v. Brenan, 177 Ill. 194; 42 L. R. A. 718; Holden v. City of Alton, 179 Ill. 318 ; Fiske v. People, 188 id. 206.)

A provision of this kind tends to create a monopoly in that it restricts the competition to a special class of printers. The board, with just as- much propriety so .far as its. legal right is concerned, might have permitted only Baptist Or Unitarian printers to enter the bidding list. The policy-of the law. is to prevent any discrimination of this kind by public officials, and the' courts, so far as. our research extends, have unvaryingly condemned this attempted violation of our fundamental law. The enactments which in recent times have found their way upon- our statute books intended to disr criminate,for or against any particular class of people or to restrict the freedom of contract have been repeatedly held to transgress the constitutional rights of the citizen. (People v. Gillson, 109 N. Y. 389; Curran v. Galen, 152 id. 33; People ex rel. Tyroler v. Warden of Prison, 157 id. 116; Schnaier v. Navarre Hotel & Importation Co., 182 id. 83 ; Wright v. Hart, Id. 330; Lochner v. New York, 198 U. S. 45; People ex rel. Appel v. Zimmerman, 102 App. Div. 103.)

The more serious proposition is whether the relator can obtain the benefits of its bid inasmuch as the obnoxious clause was contained in the specifications; and we may assume that it joined in the competition knowing this fact, and "also that the clause 'exacted an illegal requirement.

"It is well to note ihat there is no claim- by the respondents that the relator’s bid was not awarded to it after a full, fair competition. -Mor is it contended that the addition of the label' to the .journals would add to the cost of the printing to any appreciable extent. The ground for the refusal to approve the bond was. solely that it •did not contain the unlawful provision referred to. There is, therefore, this condition of affairs: The board in order to restrict, the bidding to a certain class of printers inserted an .unauthorized clause in its specifications, which was. to be embodied in the agreement. The supervisors .did this knowing its illegality and that its tendency, if adhered to, would be to increase the cost of publication to the taxpayers, because it narrowed the list of bidders. The relator’s bid, as the lowest, was accepted, but the contract would not be'let to it without the unlawful provision. It did not belong to No. 55 and, consequently, cannot perform the agreement if the objectionable clause is to be a part of it. If it should enter into the agreement and perform, barring the furnishing of the .label, it may be that the relator could recover the contract price (People ex rel. Rodgers v. Coler, 166 N. Y. 1), but that is not certain. If its bond is approved and the board should still refuse to enter into the contract with it, mandamus would not lie to compel its execution, for .it contains the unlawful provision and its execution or enforcement would not be decreed against the supervisors for the public interests are to be subserved. If, however, the agreement should be entered into, a taxpayer, if he can show a waste of or injury to the county, may maintain an action and obtain judgment enjoining the performance of the agreement. (Code Civ. Proc. § 1925; Davenport v. Walker, 57 App. Div. 221.)

The only way open to the relator, therefore, was to proceed upon the assumption that the supervisors would not insist upon the illegal clause if their attention was directed to it, or that said clause was surplusage. The relator adopted that course, but the board were still persistent in adhering to the form of their specifications. The relator is entitled to the benefit of his agreement, unless other printers refrained from bidding because of the vicious clause,» or for some other tangible reason. The respondents have not, in their return to the writ, raised any issue impugning the fairness of the bid, or tending to show that there was a lack of competitors. Their defense rests only upon the ground that the bond of the relator did not comply with the specifications in that it omitted the clause mentioned. This ground we deem untenable and no warrant for refusing to approve the bond tendered.

It is urged that the relator, having submitted its bid upon specifications containing the illegal clause, is estopped from now asserting its illegality. In other words, the relator must enter into the agreement knowing it cannot fulfill, disregard the provision and run the risk of getting pay for the work performed, or else abandon its bid and allow the respondents to contract with some other printing establishment which will perform the unlawful part of it. The first position, if carried out, would place a premium, upon deception, and the other would enable the board" to accomplish indirectly the illegal purpose intended by the resolution. The principle of estoppel in any event is not applicable. (Marshall & Bruce Co. v. City of Nashville, 109 Tenn. 495.)

Before the respondents can successfully raise the question of "estoppel against the relator they must show that they are acting in good faith themselves. They ought not to be heard to complain of the lack of fairness on the part of the bidder when their only reason for declining to accept his bond is that it does not contain a condition requiring the obligor to violate the organic law.

The principle of estoppel applies where a man by his conduct has deceived another to his damage and is, therefore, precluded from repudiating that conduct. There is no claim that the county of Onondaga has suffered any damage by the refusal pf the relator to.subscribe to the obnoxious provision. The principle of estoppel was never carried to the fanciful extent of permitting public officers to bind a man to an unlawful contract, or to repudiate an agreement because a proposed party to it declines to be held to the illegal provision. If the proposed agreement is rendered unjust because of the acts complained of,-it might have been canceled; but no such claim was raised by the affidavits .or suggested on this appeal. .

If the defendants had insisted on disregarding all bids and called for new proposals with the illegal clause expunged, an entirely different situation would be presented for our consideration. Apparently, the board of supervisors intentionally abstained from that course.

We think mandamus is the proper remedy. (People ex rel. West Side St. R. Co. v. Barnard, 110 N. Y. 548, 556, et seq. ; Baird v. Supervisors, etc., 138 id. 95.)

The court below did not exercise its discretion in refusing to grant the writ, but placed its decision upon the claimed failure of the relator, as matter of law, to show his right to it.

No adequate, excuse is offered by the respondents for their declination to approve the bond of the relator. If the price of the plaintiff’s bid is unduly enhanced because of few competitors, or if for any just reason the agreement should not be entered into, those issues may still be raised in some way; but on the record presented to us the bond tendered should be approved.

The order shoitid be reversed, with ten-dollars costs and disbursements, and the writ granted compelling the respondents to approve the bond presented ,by the relator, with ten dollars costs.

Williams and Nash, JJ., concurred; McLennan, P. J., and Kruse, J., dissented on opinion of Andrews, J., at Special Term.

Order reversed, with ten dollars costs and disbursements, and Writ granted, with ten dollars costs, compelling respondents to approve the bond presented by the relator.  