The petitioner does not allege any fraud, nor was any shown to exist from the proofs. The city advertised for bids for the work, stating in its proposals an amount of earth excavation and of rock excavation, which, in the proposals, was announced to be as approximate only; and there was no reservation other than of the right to reject any or all bids, which the commissioner of public works might deem prejudicial to the public interests.
The petitioner alleges that the estimates for bids, which were advertised, were not "approximate estimates," nor were they such estimates, "as near as possible, of the work required." He says the estimates were fictitious. If they were, such character must be an inference from the result to the contractor who received the contract and did the work. It is conceded that chapter 335, Laws of 1873, section 91, controls. By that statute "all contracts * * * shall be made by the appropriate heads of departments under such regulations as now exist or shall be established by ordinances of the common council." It further provides that "whenever any work * * * shall involve the expenditure of more than $1,000, the same shall be by contract * * * and all such contracts shall be given to the lowest bidder," etc. The Revised Ordinances of 1880 provide these regulations, viz.:
"Section 3. The proposals for estimates shall be in such form *Page 561 as may be prescribed by the department making the same, and shall contain the following particulars: * * *
Section 2. They shall state the quantity and quality of supplies, or the nature and extent, as near as possible, of the work required."
It seems from the proofs in the case that the city's engineer was mistaken in his estimates of the amount of rock and of earth in the work advertised for. Because of his erroneous estimates the petitioner seems to base thereupon a conclusion that there was a violation of the law, inasmuch as true and reasonably correct estimates were not made. I am not able to agree in the correctness of his conclusions or in his construction of the law. The statute does not demand exactness in the estimates contained in the proposals for bids; but only that the contracts shall be made under such regulations as shall be established by the ordinance of the common council. That ordinance, as we have seen, requires that the proposals for estimates shall state the nature and extent, "as near as possible, of the work required." In the absence of fraud or collusion, we must hold that the presumption exists that the public officers perform their duty. The circumstances of this case are not such as to warrant the presumption of any fraud in the contract which the city made for the work in question. The most that could be contended for as evidencing fraud would be the error in the estimates of the city's engineer and the advantage to the contractor in the result. We need not enter upon any discussion as to the difficulties in procuring exact estimates for a work of excavation to be done under a contract, whether they arise from the geological formation of the land or in the selection of engineers most competent to make the survey. The fact remains that a survey was made; that estimates were given which were announced to be as nearly correct as possible, and that there is no pretense of any fraud entering into the award of the contract. Superior knowledge in the bidder for this work, as to the formation of New York island at that part, and a wrong estimate of the *Page 562 city's engineer, may have combined to make this a more expensive contract for the improvement than it might have been if the amount of rock had been definitely known; but so long as the law was obeyed in its requirements, substantially and in good faith, the courts should not interfere. The object of the statute and of the ordinance was to invite competition for work, and to secure its performance for the lowest price which fair competition would produce. So far as we are able to see, in this case fair competion was invited. The object of chapter 383, Laws of 1870, was to give to the court jurisdiction to modify an assessment only when the expense of a local improvement had beenunlawfully increased. (Matter of Metropolitan Gas Co.,85 N.Y. 526.)
Various plans have been tried in order to arrive at as just and exact results as possible; but none thus far have received the approval of this court, and some have been condemned as illegal. Under the law as it stood, where the provisions thereof had been complied with, the contract vested in the lowest bidder. This court held in Baird v. Mayor, etc. (83 N.Y. 254), that under the law of 1861, such was the effect of advertising for contracts under its provisions, and, in view of the parity of the language of the act of 1873, the same construction should be given to the later act. In the Matter of Merriam (84 N.Y. 596), where the commissioner of public works fixed a price for rock excavation and did not submit that item of the work to public competition, it was held, in reference to the statute of 1873 and the ordinance which I have cited, MILLER, J., delivering the opinion of the court, that they were "intended to establish a system by which work done for and supplies furnished to the city should be the subject of competition and allotted to the lowest bidder for the same; and a substantial compliance with these requirements is essential to carry into effect the object of these regulations, which evidently were adopted to prevent a wasteful expenditure of the public money and to promote economy as well as practical convenience in the administration of the financial affairs of the city. The statute does not provide *Page 563 specifically as to the terms of the contract, and the ordinance only for quality and quantity as near as can reasonably be furnished." The learned judge then mentions the appellants' claim, that to state in the proposal certain prices for certain items was not to destroy competition, and that it would be exceedingly difficult to ascertain beforehand the quantity of rock excavation so as to make an estimate sufficiently correct to carry out the purpose of letting the contract to the lowest bidder, and says: "These suggestions are not without force, and while there is strong ground for claiming that when the price fixed for one or more items is fair and reasonable, and there is no evidence of fraud or extravagance, and the quantity could not be ascertained without a considerable expenditure of money, and that this could be done in some instances consistently with the interests of the public in view, and with the statute and ordinances, we are, upon the whole, of the opinion that, to carry out the intention of the law to award contracts to the lowest bidder, it is requisite that the quantity of rock excavation, as near as possible, should be stated in the proposals, and that fixing the price for the same was in disregard of the law and a violation of the statute and the ordinance of the city, which is cited."
The case of Brady v. Mayor, etc. (20 N.Y. 312), is not opposed to the view to which we give our support, that the contract vests in the lowest bidder by force of the law where the law's provisions have been complied with, and no fraud or collusion is shown. In that case it was so arranged, in inviting proposals, that there was not to be any competition as to the rock excavation, but such was to be paid for at such price as the bidder chose to insert in his proposal, provided that as to the other comparatively inconsiderable portion of the work he bid lower than any one else. It was there held, that the law was violated, inasmuch as by the arrangement in question, public competition was not secured for all the work. That case is an authority requiring that all work to be performed for the city should be subjected to public competition in order to preclude favoritism and jobbing. *Page 564
I fail to see the right or the justice in imposing upon the city at large the burden of the expense for the local improvement, or any portion of it, where the contract for doing it was awarded under the provisions of the law, and it is not alleged or shown that it was influenced by any fraud or collusion.
I am, therefore, of the opinion that the orders of the General Term and of the Special Term should be reversed, and the petition dismissed.
DANFORTH, FINCH and PECKHAM, JJ., concur with EARL, J., for affirmance; RUGER, Ch. J., and ANDREWS, J., with GRAY, J., for reversal.
Order affirmed.