People v. Karr

• Decision Date: 02 June 1925
• Citation: 148 N.E. 546,240 N.Y. 348
• Parties: PEOPLE v. KARR et al.
• Court: New York Court of Appeals Court of Appeals

240 N.Y. 348

148 N.E. 546

PEOPLE

v.KARR et al.

Court of Appeals of New York.

June 2, 1925.

Action by the People against Tilman J. Karr, doing business as the Troy Contracting Company, and his bondsman. Judgment for defendants (211 App. Div. 633, 207 N. Y. S. 351) and plaintiff appeals.

Reversed.

Appeal from Supreme Court, Appellate Division, Third Department.

Albert Ottinger, Atty. Gen. (Charles McManus, of Corning, and John H. Machan, of Waverly, of counsel), for the People.

Arthur E. Rose, of Albany, for respondents.

ANDREWS, J.

On August 5, 1919, Tilman J. Karr entered into a contract with the state of New York for reconstructing a county highway in Rensselaer county. The National Surety Company gave the usual bond. The contractor began the work referred to, but subsequently abandoned it before its completion. The work was relet and finished at an additional cost to the state of over $17,000. To recover this sum the present action is brought against the contractor and his bondsman.

Section 148 of the Highway Law, as it existed in 1919, provided that, where a highway is to be improved, and where it deviates from the line of a highway already existing, as happened in this case, ‘the board of supervisors of the county where such highway is located shall acquire land for the requisite right of way prior to the advertisement for proposals.’ L. 1917, c. 261. This land may be acquired either by purchase or by condemnation. In the present case it appears that certain parcels required for this highway had not been so acquired and were not acquired until some time after the contractor entered upon the performance of his work. Claiming he was hindered and delayed as a result, he abandoned this contract. The courts below have held that the acquiring of all necessary land by the supervisors was a condition precedent to the advertisement for proposals by the state, to the acceptance of proposals, and to the execution of the contract. The contract with Karr was therefore void. Consequently neither he nor his surety could be held liable for his failure to complete the same.

Doubtless this is so if the acquisition of the right of way is in fact a condition precedent to the advertisement for proposals and to all subsequent proceedings. If that were the intention of the Legislature, we have but to enforce it. But it is purely a question of intention. And the line between mandatory and directory statutes cannot be drawn with precision. General principles there may be. Perhaps as well as anywhere they are stated in Maxwell on the Interpretation of Statutes at page 649 et seq.:

‘It has been said that no rule can be laid down for determining whether the command is to be considered as a mere direction or instruction involving no invalidating consequence in its regard, or as imperative, with an implied nullification for disobedience, beyond the fundamental one that it depends upon the scope and object of the enactment. It may, perhaps, be found generally correct to say that nulification is the natural and usual consequence of disobedience; but the question is in the main governed by considerations of convenience and justice, and when that result would involve general inconvenience or injustice to innocent persons, or advantage to those guilty of the neglect, without promoting the real aim and object of the enactment, such an intention is not to be attributed to the Legislature. * * * Where the prescriptions of the statute relate to the performance of a public duty; and to invalidate acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those intrusted with the duty, without promoting the essential aims of the Legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words, as directory only. The neglect of them may be penal, indeed, but it does not affect the validity of the act done in disregard of them.’

The distinction is also illustrated in Hunt v. Wimbledon Local Board, 48 L. J. C. P. 207, and in Nowell v. Mayor, Aldermen, and Citizens of Worcester, 23 L. J. Ex. 139. In these cases local boards of health were authorized by the English Public Health Act of 1848 to enter into contracts. These contracts,if amounting to over £10, were to be sealed with the seal of the board. It was held that this provision was mandatory. It was a power given to the board by statute, and it could only be exercised in accord with its terms. But the statute further provided that--

...