Egan v. Bd. of Water Supply of New York

• Decision Date: 02 April 1912
• Citation: 98 N.E. 467,205 N.Y. 147
• Parties: EGAN v. BOARD OF WATER SUPPLY OF CITY OF NEW YORK et al.
• Court: New York Court of Appeals Court of Appeals

205 N.Y. 147

98 N.E. 467

EGAN

v.BOARD OF WATER SUPPLY OF CITY OF NEW YORK et al.

Court of Appeals of New York.

April 2, 1912.

Appeal from Supreme Court, Appellate Division, First Department.

Application by John J. Egan for a writ of mandamus against the Board of Water Supply of the City of New York and Charles Strauss and others, as Commissioners, to compel an inspection of the books and records of the office of the Board. From an order of the Appellate Division (148 App. Div. 177,133 N. Y. Supp. 129) affirming an order of the Special Term granting petitioner's motion for a writ of mandamus, defendants appeal. Affirmed.

1. RECORDS (s 14*)-MUNICIPAL RECORDS-INSPECTION BY TAXPAYERS-STATUTORY RIGHT.

General Municipal Law (Consol. Laws 1909, c. 24) s 51, making all books and papers filed in a public office public records open to inspection by any taxpayer, authorizes an inspection of public records by any taxpayer, subject to reasonable regulations, and subject to special statutes regulating the inspection of public documents in particular departments; and the right of inspection is not limited to such a taxpayer as may contemplate a taxpayer's action under the statute and Code Civ. Proc. s 1925, to prevent waste of public funds.

[Ed. Note.-For other cases, see Records, Cent. Dig. ss 13-18; Dec. Dig. s 14.*]

* For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

2. RECORDS (s 14*)-MUNICIPAL RECORDS-INSPECTION BY TAXPAYERS-STATUTORY RIGHT.

The papers in the office of the board of water supply of the city of New York, authorized by Laws 1905, c. 724, to acquire an additional supply of water for the inhabitants of the city, relative to the award of a contract for work for a water supply, including the reports of engineers as to the award of the contract, are within General Municipal Law (Consol. Laws 1909, c . 24) s 51, making all books and papers filed in an office public records open to inspection by any taxpayer, where the commission awarded the contract involving a large sum to one who was not the lowest bidder, though the papers sought to be inspected were marked confidential.

[Ed. Note.-For other cases, see Records, Cent. Dig. ss 13-18; Dec. Dig. s 14.*]

* For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

Archibald R. Watson, Corp. Counsel (Terence Farley, of counsel), for appellants.

Alton B. Parker, for respondent.

WILLARD BARTLETT, J.

The original order brought up for review by this appeal directs the issuance of a peremptory writ of mandamus commanding the commissioners of water supply of the city of New York to afford the petitioner an opportunity to inspect any and all reports of the chief and consulting engineers to the board of water supply on or relating to the passing upon and awarding by the said board of a contract, known as contract[205 N.Y. 150]90, for the construction a tunnel under the Hudson river between Storm King and Break Neck mountains, and two shafts in connection therewith .

The appellants constitute the board of water supply, a board of commission of public officers acting for and in behalf of the city of New York to acquire an additional supply of pure and wholesome water for the inhabitants of the municipality. Laws of 1905, c. 724. In the discharge of their duties under the statute cited, they determined that a tunnel for aqueduct purposes should be constructed under the Hudson river opposite Storm King; and they duly advertised for sealed bids or proposals for doing the work, receivable up to May 23, 1911, in accordance with plans and specifications and under a form of contract previously prepared and approved. Four bids were received, as follows, the figures in each instance representing the aggregate for doing the entire work:

+--------------------------------------+
                ¦Anthony C. Douglass        ¦$1,432,000¦
                +---------------------------+----------¦
                ¦Winston & Co. and Breuchaud¦1,483,936 ¦
                +---------------------------+----------¦
                ¦The T. A. Gillespie Company¦1,648,000 ¦
                +---------------------------+----------¦
                ¦McArthur Bros. Co.         ¦1,755,168 ¦
                +---------------------------+----------¦
                ¦                           ¦          ¦
                +--------------------------------------+
                

The contract was awarded to the T. A. Gillespie Company, instead of to the lowest bidder, under a provision of the statute which authorizes the board to ‘select the bid or proposal, the acceptance of which will in their judgment, best secure the efficient performance of the work.’ Laws of 1905, c. 724, § 29. In their report, passing upon the bids, the commissioners of water supply declare that all the bidders are experienced men; that all the evidence goes to show that the low bidder, Mr. Anthony C. Douglass, is a man of high reputation and integrity, courageous and resourceful, who has done difficult tunneling and shaft work requiring the handling of considerable volumes of water in connection with the power developments at Niagara Falls; but the commissioners ‘hesitate to make an award of this important contract to him, because there are many important differences between the work he has done and the work under contract 90, which is unusually exacting; because he has had no experience in carrying out work let by competitive bidding on large public contracts; and particularly because he has not done any contracting work for about five years, and consequently has not at hand the necessary facilities and organization which this contract expressly calls for.’ As to the second bidders, Winston & Co. and Breuchaud, who are characterized as clever, reliable, experienced, and resourceful, it appears from the report that they were already doing excellent work in connection with the Ashokan dam and the Catskill aqueduct; and the commissioners therefore deemed it unwise to concentrate all the links in the chain of construction in the hands of one contractor. ‘The board,’ we are told, ‘has come to the reluctant conclusion that the interests of the city will not be best served by the award of this contract to them.’ The third bidders, the T. A. Gillespie Company, were finally preferred, because they ‘have nearly completed for this board a work involving the same problems and of an exactly similar character, and have at hand an organization trained for this particular class of work.’ The commissioners had further satisfied themselves as to the financial standing, knowledge, experience, and ability of said company.

Upon ascertaining these facts, the petitioner, a resident and taxpayer in the city of New York, desired to see the written evidence upon which the commissioners of water supply had acted in awarding contract 90 to a contractor whose bid was $217,000 higher than the lowest bid and $165,000 higher than the next to the lowest. His request for permission to inspect the reports of the engineers, relating to the award of the contract, and all minutes, entries, books, and other papers in reference thereto, was denied by the secretary of the board, under instructions from the commissioners, and the present proceeding was thereupon instituted.

[1] The petitioner's assertion of his right to inspect the papers in question is based upon section 51 of the General Municipal Law (Consol. Laws 1909, c. 24), which provides as follows: ‘All books of minutes, entry or account, and the books, bills, vouchers, checks, contracts or other papers connected with or used or filed in the office of, or with any officer, board or commission acting for or on behalf of any county, town, village or municipal corporation of this state are hereby declared to be public records, and shall be open, subject to reasonable regulations to be prescribed by the officer having the custody thereof, to the inspection of any taxpayer.’ The petitioner does not allege that he has sustained any special injury in person or property, or that he contemplates bringing a taxpayer's action under the statutes authorizing suits by taxpayers in the public interest; he simply insists that the Legislature, by the enactment quoted, has conferred upon him a right or privilege which the commissioners of water supply cannot lawfully withhold.

The appellants, on the other hand, contend that under section 51 of the General Municipal Law a taxpayer who seeks an inspection of a public record is bound to show that he has some direct and tangible interest in it; that the reports sought to be inspected here are not public records, but private confidential communications; and that public policy forbids the inspection of such communications, in a case like this, at the instance of an unsuccessful bidder for a public contract. The learned judges who dissented in the Appellate Division were of the opinion that the...