Opinion
March, 1916.
Edson W. Hamn, for motion.
Egburt W. Woodbury, Attorney-General (Edward J. Mone, Deputy Attorney-General, of counsel), opposed.
This is a motion by relator for an order directing that a writ of prohibition issue directed to William W. Wotherspoon, as superintendent of public works of the state of New York, commanding him to refrain from awarding a contract for completing the construction of the Barge canal from the southeast corner of the town of Galen to the New York Central Railroad crossing at Lyons.
On the return of the order to show cause the defendant raised the preliminary objection that the court has no jurisdiction to entertain this application. The objection is overruled. The material facts involved in this controversy occurred in Wayne county within the seventh judicial district, and a Special Term within that district can entertain this proceeding. Code Civ. Pro. § 2092; People v. Rice, 68 Hun, 26.
The legislature, by chapter 147 of the Laws of 1903, provided for the improvement of the Erie, and other canals, and by section 3 of that act the route of the canal was defined. It provided for the improvement of the Erie canal from Three-River Point along the following route: "Thence up the Seneca river to the outlet of Onondaga lake; thence still up the Seneca river to and through the state ditch at Jacks reefs; thence westerly generally following said river to near the mouth of Crusoe creek; thence substantially paralleling the New York Central railroad and to the north of it to a junction with the present Erie canal about one and one-tenth miles east of Clyde; thence following substantially the present route of the canal, with necessary changes, near Lyons and Newark at Fairport."
By chapter 710 of the Laws of 1907, the above statute of 1903 was amended, and the route of the canal at the point in question was changed as follows: "Thence up the Seneca river to the outlet of Onondaga lake; thence still up the Seneca river to and through the said ditch to Jacks reefs; thence westerly generally following said river to near the mouth of the Clyde river; thence up the Clyde river, or any tributary thereof, and their valleys, or portions of the present canal, on lines selected by the state engineer to Fairport."
By the statute of 1903, the route of the improved canal was north of the New York Central railroad, and, by the statute of 1907, the location would be south of that railroad.
Much work has been done, and very large sums of money have been expended, in constructing the canal according to the altered route, and the superintendent of public works is about to let a contract pursuant to statute for the completion of the unfinished work on a stretch of the canal something over fourteen miles long from the southeast corner of the town of Galen to the New York Central and Hudson River Railroad crossing at Lyons, and the relator seeks, by writ of prohibition, to restrain the superintendent of public works from entering into the contract for the completion of said work on the ground, as claimed by the relator, that the statute of 1907 (chapter 710), is unconstitutional for the reason that it was an attempt to amend the statute of 1903, which was a referendum statute, without submitting it to a vote of the people.
The learned attorney-general insists that the writ of prohibition will not lie and, therefore, the order asked for should not be granted, because in letting the contract in question the superintendent of public works would be acting ministerially and in no sense judicially.
The superintendent of public works, in acting on the bid for the work in question, is clothed with a discretionary power. He is authorized to award the contract to the "lowest bidder and upon adequate security." Laws of 1903, chap. 147. He thus has a discretion, and acts in a quasi judicial capacity in letting canal contracts. If his duties in the premises were ministerial only, he would have no right to exercise any discretion whatever. In acting on bids and awarding contracts, or rejecting bids, he, necessarily, exercises some judicial discretion, and if he were proceeding unlawfully a writ of prohibition would lie. Sweet v. Hulbert, 51 Barb. 312; High Leg. Rem., 763; People ex rel Metz v. Dayton, 120 A.D. 814.
The relator urges that chapter 710 of the Laws of 1907 is unconstitutional because it amended the referendum act, Laws of 1903, chapter 147, without submitting the matter to a vote of the people.
I do not agree with the relator in this contention. The change in the route of the canal under the Laws of 1907, chapter 710, is not a radical or fundamental one. There was no attempt to divert the moneys to some other work. It applied to the single work or object of building the Barge canal and simply changed the location from an impractical route to one that the authorities deem to be a more suitable one.
When we consider the magnitude of the Barge canal work, the change of route at the point in question would be deemed a minor one made necessary by the conditions existing on the old line as adopted by chapter 147 of the Laws of 1903, and it would seem that the legislature had the power to amend even a referendum act, when, as in this case, the change was necessary in the public interest. Const., art. 3, § 1; 8 Cyc. 807.
I think, however, that the motion should be denied, and the writ not issue, for the reason that a greater injustice would result if it were issued than would follow if it were refused, and inasmuch as the writ of prohibition is an extreme remedy it should not issue unless it is absolutely necessary.
The moving papers do not show any facts that would justify the claim that irreparable injury would follow if the writ was denied. On the contrary, it plainly appears that very great public injury would be likely to follow if the writ were issued. It would be apt to defeat and not promote the ends of justice.
Since the adoption of chapter 710, Laws of 1907, changing the route of the canal through Wayne county from the route as originally adopted, the state has spent very large sums of money, between $3,000,000 and $5,000,000, along the new route.
The relator is chargeable with knowledge of the progress of this work along the altered route during the past seven or eight years, and he has stood by without protest or objection until most of the work has been completed, and now he seeks, by writ of prohibition, to prevent the superintendent of public works entering into a contract for the small portion of the work on the altered route yet uncompleted. He must be deemed guilty of inexcusable laches, and that alone would be sufficient reason to deny this motion. Danner v. N.Y. H.R.R. Co., 152 A.D. 405.
It is not shown by facts stated in the papers that the relator will suffer any irreparable injury if this contract is entered into and the work permitted to proceed, but, on the contrary, it is shown that great public mischief, damage and waste will follow the holding up of the contract.
For these reasons, and the further reason that the relator has, without protest, permitted the work to go on for years along the altered route, he must be deemed to be guilty of such laches as to preclude him from restraining the superintendent of public works under a writ of prohibition.
The motion must be denied, but under the circumstances it will be without costs
Motion denied, without costs.