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People v Carr, Secretary of State, et al.
Supreme Court, General Term, Third Department.
January, 1884.


Certiorari by the people of the state of New York against Joseph B. Carr, secretary of state, and others, constituting a contracting board, to review the action of defendants in making a contract. Judgment for defendants.


Learned, P. J., Boardman and Bockes, JJ.



This certiorari was granted for the purpose of reviewing the action of the secretary of state, the comptroller, and the state reporter, as a contracting board, in making a contract for the publication of the reports of the court of appeals, with Weed, Parsons & Co. The contract was made on the 13th day of December, 1883, for the term of three years, under the provisions of Code, 211. The defendants had jurisdiction of the subject-matter of the determination made by them, and now under review. Some question has been made whether their authority has been pursued in the mode required by law, so as to authorize their determination, of which notice will be taken hereafter. No evidence of any kind was produced, and no determination was made upon evidence, and hence no question can arise over the admission or rejection or weight of evidence. There remains, then, under section 2140 of the Code, the one question to be reviewed,—"whether, in making the determination, any rule of law affecting the rights of the parties thereto has been violated to the prejudice of the relator." There is no relator to be prejudiced. The sole question remains, was the action of the defendants legal? There is nothing in Code, 211, requiring the contract to be made with the lowest bidder, or any particular bidder. The action of the defendants was not limited or restrained after the bids were before them. They are required to "advertise for, receive, and consider proposals for the publication of the reports." This the defendants certify was done. They were then required to make a contract, "on terms the most advantageous to the public, regard being had to the proper execution of the work," etc. This the defendants, by their return, certify they have done. The return is conclusive. (People v. Board of Fire Com'rs, 73 N. Y. 437.) A discretionary power was given by statute to the defendants. It has been exercised by them in making this contract. What is the evidence that such discretion has been abused, or that their action was illegal? Who can review such proceedings, and how can they be reviewed? If by this court, then its three justices are called upon to substitute their judgment and their discretion in place of those designated by law. The return of the defendants is a complete justification upon its face of the making of the contract in question, and must be taken as true. There was no substantial departure in the notice published by defendants from the requirements of the law.

The contract to be made was for the public benefit. The defendants, in their discretion, could embrace other conditions than those named in the law, if in their opinion they conduced to the public benefit, and hence they could by notice indicate that such requirements would be made. (Little v. Banks, 85 N. Y. 258.) The remarks already made indicate quite clearly that the action of the defendants was in no sense judicial, and hence is not reviewable by certiorari.

The defendants were the agents of the state to make a contract. If they have kept within the power and authority granted them by statute, the contract is valid; otherwise, it is not binding. The duties discharged were purely ministerial, although requiring the exercise of judgment and discretion. In such cases a certiorari will not lie. (People v. Walter, 68 N. Y. 411; People v. Supervisors of St. Lawrence Co., 25 Hun, 131; People v. Supervisors of Livingston Co., 43 Barb. 332, affirmed 34 N. Y. 516.) We conclude—First, that there is no evidence of a failure of duty on the part of the defendants in making the contract with Weed, Parsons & Co.; and, second, that such duty was not judicial, but ministerial, and hence cannot be reviewed by this writ. The writ of certiorari should be quashed, with $50 costs and disbursements.

All concur.