Teresa M. Kingsley, Appellant, v. Carl E. Bowman and Others, Constituting the Board of Supervisors of the County of Erie, and Neil McCloskey, as Clerk of the Board of Supervisors of the County of Erie, Respondents

Teresa M. Kingsley, Appellant, v. Carl E. Bowman and Others, Constituting the Board of Supervisors of the County of Erie, and Neil McCloskey, as Clerk of the Board of Supervisors of the County of Erie, Respondents. County — the Sh'ie county board of supervisors has no power to direct the daily publication of its proceedings — a taxpayer’s action to restrain such publication — letting a contract in part for the doing of illegal work to the highest bidder, when wholly void. There is no provision of law authorizing the expenditure of public moneys to defray the expenses of the daily publication in a newspaper of the proceedings of the board of supervisors of Erie county. A taxpayer is authorized to maintain an action under the “Taxpayers Act” to .restrain a board of supervisors from entering into a contract which will involve the illegal wasting of public moneys, whatever his private interest or motive may be in so doing. Where a board of supervisors let a contract for the daily publication of its proceedings, and for the furnishing of bound copies of its proceedings at the close of its annual session, to the highest instead of the lowest bidder, the only reason assigned being that such highest bidder ivas engaged in the publication of a newspaper having a larger circulation than that published by the lowest bidder, and that the citizens of the county would be afforded a better opportunity to read daily the proceedings of the board if the contract were let to the former, it was Held, that the provision for the daily publication of the proceedings being invalid, the excuse for letting the contract to the highest bidder failed, and that, in addition to being restrained from performing the contract for the daily publication of its proceedings to the highest bidder,'the board of supervisors should be restrained from performing the contract let to such highest bidder of-furnishing the bound volumes. Appeal -by the plaintiff, Teresa M. Kingsley, from an order of the Supreme Court, made at the Erie Special Term and.entered-.in the-office of the clerk of thé county of Erie on the 10th day of February, 1898, denying the plaintiff’s- motion for an injunction during the pendency of the action. On the 4th day of January,, 1898, the defendants, all- but one of whom constitute the board of supervisors of Erie county, adopted a resolution directing their clerk, who is also one of the defendants, to invite sealed proposals from the daily papers printed in the English language in the city of Buffalo, for the publication of the proceedings of the board and of the notices of tax sales in the county of Erie for the year 1898, including the delivery in the morning before the opening of each session- of sixty copies of the minutes of the preceding session, in pamphlet form, with covers in which to file the' same; also for furnishing at the close of the annual session of the board 3,000 copies of its proceedings and of the annual reports of the various county officers, in pamphlet form, and also for a copy of the paper containing the daily proceedings to be delivered to each-member of the board and to the clerk thereof. In pursuance of such direction, the'defendant McCloskey, as elerk'of the board, on the 6tli day of January, 1898, addressed a letter to the publishers of the various city papers, inviting them to make sealed proposals for the work and materials above specified, and in response to this invitation proposals were subsequently received from the firm of James D. Warren’s Sons, who are the owners .and publishers of the Buffalo, Daily Qommeróial, and also from Oharles TI. Webster, the publisher of another paper, known as the Daily Merccmbile Devieio. On the day following, these proposals, which, it seems, were the only .ones received, were opened by the board and referred to its committee on printing; which committée subsequently recommended that the proposal of the Buffalo Commercial be. accepted, and thereafter and on the 1st day of February, 1898, the board of supervisors adopted the following resolutions, viz.: “ Resolved, That the Buffalo Commercial be and it is hereby designated as the official paper of the Oounty-of Erie for the year 1898. “ Resolved, That the proposal of the Buffalo Commercial to print the proceedings of the Board of Supervisors of Erie County, in accordance with their bid, and the notice of tax sales for 1898, including the delivery in the morning before the opening of each session, of sixty copies of each session’s minutes, in pamphlet form, with properly inscribed hard covers in which to file the same. Also to furnish, after the close of the annual session, three thousand copies of said proceedings bound in pamphlet form, with appropriate covers, containing the annual reports of the various county officers that may be presented during the month of January, 1899. “Also to furnish one copy of their paper daily to the Clerk, and to mail one copy containing the minutes of the last meeting to each member of this Board at his home address ” (be accepted). The proposal of the publisher of the Daily Mercantile Review was for a less sum than that for which the successful bidder offered to do the work; but it appeared that the Commercial circulated generally throughout the county of Erie, while the circulation of the Mercantile Review was exceedingly limited and confined principally to lawyers and real estate dealers in the city of Buffalo. Upon this state of facts, which is not Controverted, the plaintiff brings this action under what is known as the “ Taxpayers’ Act,” to restrain the defendants from entering into the contract contemplated by the resolutions adopted on the first day of February, upon the ground that such a contract would involve the illegal wasting of public funds ; and this appeal, is from an order of the Special Term denying the plaintiff’s motion for an injunction pendente lite. Edward L. Jellinek, for the appellant. John W. Fisher, for the respondents. [MAJORITY — Adams, J.:] Adams, J.: The concessions of counsel have simplified the issues herein somewhat, and, so far as the matters still in controversy are concerned, we find that there is much in the case upon which the plaintiff rests her contention which may be disposed of without extended discussion. In Í884 the Legislature of this State, enacted a law which was designed to provide “ for the ÍDetter collection of taxes in the county of Erie,” and this act (Laws of 1884, chap. 135, .§ 14) directs that notices of tax sales shall be published in. two newspapers in the city of Buffalo, “ one of which shall be the official paper of the county,” and that the compensation therefor shall, within certain specified limits, be fixed by the board of supervisors at their annual session in each year. Inasmuch as the- resolution which awarded the contract for publishing, such notices to the Buffalo, Commercial was'preceded by another designating that as the official paper of the county, and it being conceded that the price agreed upon' for such publication was within the statutory limit, there seems little opportunity for charging the defendants with a- violation of the law, or even with an abuse of the discretionary power which the statute vests in them in selecting that paper as the medium ..through which notices of tax sales should be given to the public. - And the situation is virtually the saíne as respects the publication of the proceedings of the board in pamphlet form, for, by section 18 of chapter 686 of the Laws of 189.2, known as the “ County' Law,” it is provided that: “Each board of supervisors shall cause as. many copies of the proceedings of its' session, - certified by its chairman and clerk, to be printed as a county charge in a pamphlet volume as soon as may be after each session, -as they may deem necessary, for exchange with other boards,, and for the members of the board and other town and county .officers.’’ The most casual reading of this statute makes it clear, we think, that while it commands the. board of supervisors to publish its proceedings in a pamphlet form, it does not specify the number of pamphlets to be published, nor . fix any limit to the price to be paid there^for, but very properly leaves these -matters to be determined by the board in the exercise of its discretion. ■ Awarding the contract for printing these pamphlets to the Commercial at a price which slightly exceeded that at which the publisher of the Mercantile Review offered to do the same work; may . possibly have amounted to an abuse of the discretionary power - which the Legislature had thus conferred upon the defendants, but if so that fact would not, in the absence of any allegation of bad faith, authorize the' plaintiff to maintain this action. (Talcott v. City of Buffalo, 125 N. Y. 280.) When, however, we come to consider the matter of publishing the daily proceedings of the board, some very different questions present themselves for our consideration, and the first and most important thing to be observed in this connection is that the action of the defendants in inviting and accepting proposals for this particular work is entirely without statutory authority. Section 17 of the County Law, which directs that all acts or resolutions passed by the board of supervisors “ within six weeks after the close of each session (shall be) published in the newspapers in the county appointed to publish the session laws of the legislature,” has no reference to the ordinary proceedings of the board, but only to such as are legislative in their character, and within the scope and authority of section 27 of article 3 of the State Constitution. But it- is insisted that the furnishing of .the printed copies of the daily proceedings may be regarded as in the nature of “ supplies,” which the defendants were authorized to provide themselves with by what is known as the “ County Auditor Act ” (Laws of 1895, chap. 173), the 6th section of that act, which is the one invoked in support of this proposition, providing that, “Keepers of county institutions and county officials may pmrchase for the use of such institutions or offices all supplies necessary for their support and maintenance; all accounts for which shall be presented to the county auditor, to be examined by him, as prescribed in this act. “ If directed by the board of supervisors, with or without the recommendation of the county auditor, supplies for such county institutions or officers shall be purchased under contract let to the lowest bidder, upon a notice publicly announced in a manner and form prescribed by the board of supervisors.” It .would require, we fancy, a very strained construction of this statute to find in it any warrant for the expenditure of public moneys to defray the expenses of publishing the daily proceedings of the board of supervisors of a countyfor even if the papers containing such proceedings can be regarded as necessary supplies, the board is not a “ county institution,” neither are its members “ county officials,” and consequently they are not within either the letter or the intent of the section above quoted. ■. But without dwelling any longer .upon this feature of the case it may be remarked that the board of supervisors,, while created by the Constitution (Art. 3, § 26),- derives all its powers to act from the State Legislature. It cannot, therefore, .be said to possess any. inherent powers, but its exercise of authority must in all cases, and especially in the expenditure of public nioneys, be' confined to the powers which are conferred by law, and enumerated in the statute conferring them. (Brady v. Supervisors, 10 N. Y. 260; Parker v. Supervisors, 106 id. 392, 410.) It would seem to follow, therefore, that the attempt upon the part of the defendants to carry into effect so much of the resolution.of February first as contemplates the publication of the daily record of their proceedings at the expense, of the county was an illegal exercise of power, and consequently the court would be- justified in restraining such action at the instance of a resident taxpayer who., in good faith, invoked its aid. (Code Civ. Proc. § 1925.; Talcott v. City of Buffalo, supra ; Ziegler v. Chapin, 126 N. Y. 342; People ex rel. Trustees, etc., v. Supervisors,: 131 id. 468.) We conclude,, therefore, that the order appealed from should be reversed. All concurred. [CONCURRENCE — Follett, J. (concurring):] Follett, J. (concurring): ■ I concur in the opinion of Mr.. Justice Adams,, holding that the action of the board of supervisors in directing the daily publication ' of its proceedings was without statutory authority. The opinion demonstrates that this action of the board was illegal,, and, if consummated, will impose an illegal tax upon tile taxpayers of the ■ county of Erie: • There is no evidence in the record that the plaintiff’s husband is . one of the proprietors of the Daily Mercantile Review. All that. appears in the record on this subject is found in an affidavit made • by. the manager of the Buffalo' Commercial, the successful bidder■ for the -work, where it is stated: “ Deponent further states that. Charles F. Kingsley, who is one of the sureties in the undertaking given herein, is or claims to be one of the proprietors of the said. Mercantile Review, and the husband of the plaintiff herein; that. tiie attorneys for the plaintiff are the attorneys for the said Mercantile Review, and deponent is informed and believes that the said action, while brought in the name of the said plaintiff, is in reality-instituted and conducted by the proprietors of the said Review, not for the purpose of protecting the interests of the public, but to further their own private ends and interests.” This averment is entirely upon information and belief, and neither the sources of the affiant’s information nor the grounds of his belief are disclosed. Such an averment is entitled to but little weight in judicial proceedings, and, especially, in a case where the contrary is positively averred by one presumably having personal knowledge of the fact. It is alleged in the complaint and averred in the affidavit accompanying the same that Charles TL. Webster is the owner and publisher of the Daily Mercantile Review. However, if it appeared that this plaintiff was one of. the owners of the Dail/y Mercantile Review, instead of being the wife of a person supposed to have an interest therein, and that she brought the action by reason of her interest, such facts would not bar her right to maintain this action, or her right to restrain pendente lite the imposition of an illegal burden upon her and upon all other taxpayers by the unauthorized acts of the defendants. In an action to enforce individual rights and to compel a defendant to do that which in equity and in good conscience he ought to do, the plaintiff must come into court with clean hands, but the maxim that “ He who comes into a court of equity must come with clean hands ” is not applicable to the case at bar, but to a case in which the plaintiff has been guilty of misconduct or inequitable conduct in respect to the subject-matter of the litigation affecting the. rights of the litigants,.and to actions brought by mere volunteers, persons having no interest in the litigation. “ When a court of equity is appealed to for relief it will not go outside of the subject-matter of the controversy, and make its inter-: ference to depend upon the character and conduct of the moving party in no way affecting the equitable right which he asserts against the defendant or the relief which he demands.” (1 Pom. Eq. Juris. § 399.) This plaintiff is not. a volunteer. She is a taxpayer and the statute gives her the right to maintain this action, and she has done nothing which induced the illegal action of the defendants, and it is not averred that she has been guilty' of misconduct in respect to •the action. By this action the defendants are not sought to he compelled to do that which in equity and in good conscience they ought to do, but the action is to restrain them from doing that which they have no statutory right to do—• waste the property of. the'taxpayers by incurring expense without the authority of law. There is;a broad distinction between actions for affirmative, relief by and against individuals, and actions to restrain the illegal acts of public officials. Any taxpayer is authorized to maintain this action, no matter what his private interest or motive may be, and in case public ■ officers, whose duty it is to protect the taxpayers, determine to impose a liability upon them without authority and waste their property, -as in the case at bar, as is clearly demonstrated by the opinion of Mr. Justice Adams, an action should be encouraged to restrain the consummation of the wrong. It is unfortunate that violators of public law, civil dr criminal, are too seldom prosecuted unless the prosecution is instituted and pressed by persons personally aggrieved by the violations consummated or proposed, and a rule that such persons may not maintain actions to prevent the illegal acts of public boards'and officers, would'be contrary to a.sound public policy. Section 1925 of the Code of Civil Procedure is a remedial statute, passed to afford a remedy for a growing evil, and like all such, statutes should be liberally construed so as to suppress the mischief aimed at and advance the remedy given. In Reynell v. Sprye (1 De Gex, M. & G. 660) it was held -that “ where the parties to a contract against' public policy, or illegal, are not in pari delicto, and where public policy is considered as ad vanced by allowing either, or at least the more-excusable of the two, to sue for relief against the transaction, relief is given to him.” This rule is also declared in Tracy v. Talmage (14 N. Y. 162, 181). For a stronger reason a plaintiff should not be denied the right to maintain an action given by statute for the -redress of a public wrong. The maxim in equity corresponds with'the legal maxim. Out of fraud 110 action arises, and that as between parties who are alike in wrong no relief will be granted to either,, but before tíre ruléis applied the parties must be in pari delicto as well as particeps criminis, for the.courts, although the contract be illegal, will afford relief to the-more innocent party where equity requires it. (Tracy v. Talmage, supra.) Any citizen who is a taxpayer has the right to maintain an action, legal or equitable, to compel public officers to obey the law, or to restrain them from violating the statutes, and it is quite immaterial whether the plaintiff, in such an action, has or has not a personal interest in the result of the action. For example, any citizen may sue out a mandamus to compel public officers to obey the statute, and in such cases it is quite immaterial who the relator is or what his interest may be. (People v. Halsey, 37 N. Y. 344; People ex rel. Boltzer v. Daley, 37 Hun, 461.) This question has been the subject of judicial consideration. In Hull v. Ely (2 Abb. N. C. 440) it was held at Special Term that an injunction pendente lite should not be granted in an action brought under chapter 161 of the Laws of 1872 by a taxpayer, in which it was admitted that it was not brought for the protection of the plaintiff and of other taxpayers, but at the instigation and expense of parties using the ferry franchise, the sale of which was sought by the action to be enjoined. In Kimball v. Hewitt (17 N. Y. St. Repr. 743; affd., 15 Daly, 124), an action brought by a taxpayer under chapter 673 of the Laws of 1887, an injunction pendente lite was denied because it appeared that the plaintiff brought the action at the instigation of third persons, and for their benefit, and not for the protection of thé interests of taxpayers. In Starin v. Mayor (42 Hun, 549, revg. 1 N. Y. St. Repr. 544), an action brought by a taxpayer under chapter 531 of the Laws of 1881, to restrain the execution of a lease of a wharf and ferry franchise, it was held that a taxpayer’s action might be maintained by a rival bidder at the sale whose bid was higher than the one to whom the franchise was sold. It was said: “ He (plaintiff) was a bidder at the sale, and was interested in the use of the wharf and the ferry franchises previous to the time of the making of the sale, and because' of his interest the objections- made by him to the authority of the sinking fund commissioners to make the sale in the manner in which it took place, it has been urged should not be considered, and that this action cannot be maintained by him. But the law contains nothing disabling a taxpayer who may have been desirous of obtaining the leasehold interest, or who bid at the sale,, or previously owned a leasehold term in the sainé property, from maintaining sueli an action as this. What it requires is that the plaintiff shall be a taxpayer, assessed- for property to the amount, at least, of $1,000, and that the requisite bond shall be executed and delivered, as that has been directed by the law. And that the plaintiff was such a taxpayer, and this bond has been executed and filed, appears as facts -in the case, and that distinguishes this case from Hull v. Ely (2 Abb. N. C. 440). Under the -provisions of the statute he was a person authorized to maintain the action, if, upon the facts appearing, the disposition proposed to be made of the property and ferry franchises was illegal." The object.' of this statute is to secure the protection of public property and to subordinate the acts of officials in its disposition, or appropriation, to the restraints of the law. And it requires to be liberally construed and applied to carry this object into effect. (Ayers v. Lawrence, 59 N. Y. 192.)” The judgment of the General Term in the case last cited was reversed (sub nom. Starin v. Edson, 112 N. Y. 206), but not on the ground now under- consideration, the Court of Appeals making this, significant remark: “We shall assume that there is nothing in the record which in any way precludes the plaintiff from maintaining this action, provided it could be maintained by any taxpayer under the act, chapter 531 of the Laws of 1881, entitled ' An act for the protection of taxpayers.’ ” It is clear, I think, that upon principle ..and by the weight of authority the plaintiff has the right to maintain .this action and to have an injunction pendente lité. Nor can I concur in the view that the award of the printing which the board was authorized to contract for was a legal exercise of the power conferred on it. • The. Daily Mercantile Review offered to print daily the proceedings of the board at ten cents per folio. The work was awarded to the Buffalo Commercial at fifteen cents per folio. The'Daily Mercantile Review'■ offered to furnish sixty copies of each session’s minutes at forty cents per page. The work was awarded to the Buffalo Commercial at sixty cents per page. . The Daily Mercantile Review offered to furnish' 3,000 printed copies of the proceedings at one dollar and twenty-five cents per page. The work was awarded to the Buffalo Commercial at one dollar and fifty cents per page. . ■ . The Daily Mercantile Review offered to publish the tax sales at fifty cents per description-. The work was awarded to the Buffalo Commercial at fifty-four cents per description. As is shown by Mr. Justice Adams, the printing of the daily proceedings in a newspaper is not authorized by law, and it is conceded that the board had the right to order the publication of tax sales in the Buffalo Commercial, that being the official paper of the county. When the motion for an injunction pendente lite, was denied the defendants had not answered, and the only reason appearing in their affidavits for letting the printing to the highest instead of to the lowest bidder is that the circulation of the Buffalo Commercial vastly exceeds that of the Daily Merccmtile Review, and that the citizens of the county would not so generally be afforded an opportunity to read daily the proceedings of the board of supervisors if published in the latter paper instead of in the former. But, as before stated, we all agree that the board had no right to 'contract for this service, and so the only excuse presented by the defendants in their affidavits for letting the work to the highest instead of to the lowest bidder fails. ■ I think the order should be reversed, with ten dollars costs and disbursements, and an injunction granted restraining defendants from entering into or performing any contract for the daily publication of the proceedings of the board of supervisors and restraining them from entering into or performing a contract with the Buffalo Commercial for printing 3,000 bound copies of the proceedings at one dollar and fifty cents per page, with ten dollars costs of the motion. All concurred. Order reversed, with ten dollars costs and disbursements, and' injunction [granted] restraining the defendants from entering into or performing any contract for the daily publication of the proceedings of the board of supervisors and restraining them from entering into or performing a contract with the Buffalo Commercial for printing 3,000 bound copies of the proceedings at one dollar and fifty cents, per page, with ten dollars costs of the motion.