The question in this case is one of great importance, involving, as it does, the liability of the city of New York for contracts made by public officers without compliance with the provisions of the charter in relation to the execution of contracts and the incurring of liabilities by the city of New York for supplies furnished to the city where no contract has been made as provided for by the charter. That the plaintiff should be paid for the services that it has rendered in lighting the streets of the city of New York for the period named, and that the lights were furnished under the assurance of the city officials that some means would be found to provide for the payment of their bills, should not blind us to the fact that we are dealing with a purely legal question, involving as it does a liability of the taxpayers of the city of New York for the acts of public officials appointed under legislative authority. This court is now asked to grant to these plaintiffs a judgment against the city of New York, which must be paid out of the money raised by taxation ; and the question which arises at the threshold of the case and which must be controlling upon us in its determination is whether, under the charter of the city of New York, there was imposed, by the facts stated, a legal obligation upon the municipality. We should grant to this plaintiff no judgment which would take from the city of New York a large sum of money, unless under the charter of the city the *28law imposes such an obligation upon the municipal corporation. The facts upon which the plaintiff seeks to impose this liability upon the city are as follows: The plaintiff, a corporation organized to supply electricity for the purposes of lighting the streets and public buildings, had been furnishing electricity to the city under a contract made with the city as prescribed by law. That ¿contract expired on December 31, 1898. For reasons which it is not necessary to state the public officials in whose charge the lighting of the city had been placed by the charter failed to make a new contract for lighting this particular portion of the city; and on January 1, 1899, no contract was in existence. At the request of the municipal officers the plaintiff. continued to light the streets which it had theretofore lighted, receiving the assurance of the public officials that some means would be provided to pay them for the services rendered; and in this action they seek to recover for such services.
The duties and obligations imposed upon municipal corporations have become questions of the greatest importance under the modern conditions in which we are placed. The enormous growth of modern cities, the necessity of providing for the health, protection and comfort of their inhabitants, has entailed upon municipal corporations largely increased duties and obligations, with a corresponding increase of the power given to the municipality and the officers designated to act for it. In considering this question it is eventialthat we should keep clearly in view the nature of the duty imposed upon the municipal corporation and upon the officials who are authorized by law to represent it. As was said by Judge Dillon, in his work on Municipal Corporations (Vol. 1 [4th ed.], p. 34): “ If we analyze the complex powers usually conferred upon a municipality in this country we shall discover that these are of two general classes, viz.: 1. Those which relate to health, good government, efficient police, etc., in which all the inhabitants have an equal interest and ought to have an equal voice. 2. Those which directly involve the expenditure of money, and especially those relating to local improvements the expense of which ultimately falls upon the property owners.” This distinction is carried through all of the legislative provisions in relation to the performance of these duties by municipal corporations and the authority given to the public officers to perform these duties. Among the most important of these duties is that of maintaining *29the public 'Streets and highways within the municipality, which includes the lighting of streets. This duty directly relates to the health, good government and efficient police of a municipality and is thus directly within the first class before referred to. The nature of this obligation or duty is clearly governmental. By its exercise the municipal corporation receives no direct benefit, the object being the proper protection, preservation and well-being of the inhabitants of the municipality, and generally of the inhabitants of the State. “The expense of performing this duty, however, is imposed upon the municipal corporation, and it is authorized to raise, by taxation, the money necessary to its performance.
In the performance of such obligation thus imposed, and in the exercise of the power granted to the officers of the corporation, the charter of the corporation by which it is created is its organic law. Neither the corporation nor its officers can do any act, or make any contract, or incur any liability, not authorized thereby or by some legislative act applicable thereto. All acts beyond the scope of the powers granted are void. At page 528 (§ 457) Judge Dillon says : “ The general principle of law is settled beyond controversy that the agents, officers, or even city council, of a municipal corporation cannot bind the corporation by any contract which is beyond the scope of its powers or entirely foreign to the purposes of the corporation. * *_ * This doctrine grows out of the nature of such institutions and rests upon reasonable and solid grounds. The inhabitants are the corporators ; the officers are but the public agents of the corporation. The duties and powers of the officers or public agents of the corporation are prescribed by statute or charter, which ail persons not only may know, but are bound to know. * * * These considerations vindicate both the reasonableness and necessity of the rule that the corporation is bound only when its agents or officers, by whom it can alone act, if it acts at all, keep within the limits of the chartered authority of the corporation.” Further (at p. 540), it is said: “ An absolute excess of authority by the officers of a corporation, in violation of law, cannot be upheld ; and where the officers of such a body fail to pursue the requirements of a statutory enactment under which they are acting the corporation is not bound. In such cases the statute must be strictly followed ; and a person who deals with a municipal body is *30obliged to see that its charter has been fully complied with; when this 1 is not done no subsequent act of the corporation can make an ultra vires contract effective.” Further (at p. 543), it is said : “ Where the charter or incorporating act requires the officers of the city to award contracts to the lowest bidder a contract made in violation of .its requirements is illegal, and in an action brought on such contract for the work the city may plead its illegality in defense, and neither the municipality nor its subordinate officers can make a binding contract for such work except in compliance with the requirements of the law.”
As we have seen, the duty to maintain and regulate the streets in the city of New York is imposed upon the municipal corpoporation by the Legislature, and the methods by which that duty is to be performed are expressly regulated by the organic law under which the corporation exists; and in the performance of that duty or obligation, the officers of the municipal corporation must strictly follow the • provisions of the charter. It is only where such provisions have been so followed, and a contract is made in strict compliance with the legislative direction, that the corporation is liable. ■ This principle has been applied in this State in an unbroken line of authorities. It has been again and again reiterated by the highest court of the State. It, will be necessary to cite but one or two cases in which this rule has been distinctly and emphatically maintained. Thus, in McDonald v. The Mayor (68 N. Y. 26) it is said: “ Nor can it be that the provisions of the statute are alone for the instruction of the department and officials of the defendant. They were a restraint upon them, but upon other persons as well. They put upon all who would deal with the city the need of first looking for the authority of the agent with whom they bargain. Quite clearly do they impose upon the paying agent of the defendant a prohibition against an unauthorized expenditure. And are they not also a restraint upon the municipality itself % They are fitted to insure official care and deliberation, and to hold the agents of the public to personal responsibility for expenditure; and they are a limit upon the powers of the corporation, inasmuch as they prescribe an exact mode for the exercise of the power of expenditure. * * * It is fundamental that those seeking to deal with a municipal corporation through its *31officials must take great care to learn the nature and extent of their power and authority.” Then, in speaking of the claim that the defendant, having appropriated the materials of the plaintiff and used them, was bound to deal justly and pay him the value of them, the court says: “ Here there is an express legislative inhibition upon the city that it may not incur liability unless by writing and by record. How can it be said that a municipality is liable upon an implied promise when the very statute which continues its corporate life, and gives it its powers and prescribes the mode of the exercise of them, says that it shall not, and hence cannot, become liable save by express promise % * * * It is plain that if the restriction put upon municipalities by the Legislature, for the purposes of reducing and limiting the incurring of debt and the expenditure of the public money, may be removed, upon the doctrine now contended for, there is no legislative remedy for the evils of municipal government, which, of late, have excited so much attention and painful foreboding. Restrictions and inhibition by statute are practically of no avail if they can be brought to naught by the unauthorized action of every official of lowest degree, acquiesced in, or not repudiated, by his superiors. *' * * The statute may not be carried further than its intention, certainly not further than its letter. Its purpose is to forbid and prevent the making of contracts by unauthorized official agents for supplies for the use of the corporation. This opinion goes no further than to hold that where a person makes a contract with the city of New York for supplies to it without the requirements of the charter being observed, he may not recover the value thereof upon an implied liability.” (See, also, Dickinson v. City of Poughkeepsie, 75 N. Y. 65; Smith v. City of Newburgh, 77 id: 136.) The same rule is stated as well settled in the American and English Encyclopaedia of Law (Vol. 15 [1st ed.], 1086), where all the authorities are cited.
It has been attempted many times to impose upon this rule an exception in cases where an immediate necessity for the article to be procured or services to be rendered has arisen, so that it would be impracticable to comply with the express provisions of the contract, and the learned counsel for the plaintiff has endeavored to bring this case within such an. exception, and the case of Harlem, Gas Co. v. Mayor (33 N. Y. 309) is cited as an authority. In that case there *32were two opinions of the court, one by Judge Porter, in which he held that the contract there in question was not within the legitimate scope and intent of the provisions of the amended charter, and one by Judge Brown to the same effect. The case does not show with which of these opinions the court agreed, but, even by Judge Brown’s opinion, the right of the plaintiff to recover is put upon the express ground that under the particular terms of the charter then in force it could not have been intended to apply. But this case cannot be considered as an authority for a proposition that when the furnishing of a special object or the rendition of a special class of services is expressly provided for by the charter, and provision is expressly made for the making of a contract for the supply of such materials or the rendition of such services, the court would nullify the statute and hold that it could not apply, because, in its opinion, an immediate necessity arose for a violation of the charter. The question in this case must come down to the determination of the effect of the provisions of the charter regulating the making of contracts like the one in question. If there were no special provision in the charter for making contracts for lighting the streets or supplying gas or electricity to the city for lighting purposes, it might be that the rule applied in the case of Harlem Gas Co. v. Mayor (supra) and in the case of Gleason v. Dalton (28 App. Div. 555) would be applicable, and that it could he held that the general provisions as to contracts for supplies to the city of Hew York would not apply in a case where there was but one bidder who could compete, or where the subject-matter of the contract is such that competitive proposals work an incongruity and are unavailing as affecting the final result, or where they do not produce any advantage, but the nature of the supply requires that it be determined from inspection and test, which are made up from present examination and trial, and depend upon special knowledge and judgment, or where the thing to be obtained is a monopoly, or the requirement is of personal skill or professional service, or it is practically impossible to 'obtain what is required and observe such form, the language of the statute does not apply, and the particular case falls within the exception.” (Gleason v. Dalton, supra.) After the decision of the Court of Appeals in the case of Harlem Gas Co. v. Mayor (supra), the Legislature adopted a provision regulating the making of contracts for lighting *33the streets and buildings, which provision was continued by section 69 of the Consolidation Act. (Laws of 1882, chap. 410.) It was then provided that the commissioner of public works, in conjunction with the mayor and comptroller, is authorized, from time to time, to contract for lighting the streets, avenues, piers, parks and places of the city with gas or other illuminating material by one or more contracts to be let at public letting as provided by law for a period of one year, or any part of a year, and commencing and terminating at any date the said board may determine. There was here a special legislative provision regulating such contracts. By this section the public officers named were authorized to contract for lighting streets, etc., for a period of one year, or any part of a year; but such contracts were required to be let at a public letting.
The new charter of the city of New York (Chap. 378, Laws of 1897, which took effect on the 1st day of January, 1898), made a material change in the provisions in force for making contracts for lighting public streets and buildings. By section 573 it was provided that the commissioner tof public buildings, lighting and supplies should have cognizance and control of the “ making and performance of contracts when duly authorized in accord with the provisions of this act, and for the execution of the same in the matter of furnishing the city or any part thereof, with gas, electricity or any other illuminant; ” and it was further provided that the said commissioner should prepare all contracts relating to the city for submission to the board of public improvements. By section 587 it is provided that “ The commissioner of public buildings, lighting and supplies * * * shall prepare the terms and specifications under which contracts shall be made for lighting the streets, public buildings and parks of said city. Separate contracts shall be made for such lighting in each of the boroughs of The City of New York, or in such subdivisions of the city as may appear to the board of public improvements and the municipal assembly to be for the best interests of said city * * * Such bids shall be prepared and advertised for, and such contracts shall be executed in the manner prescribed for herein as to other contracts entered into by said city or the departments thereof. Contracts shall be made for the term of one year and shall be awarded to the lowest bidder.”
*34By section 419 of the charter it is provided that “ all contracts shall be entered into by the appropriate heads of departments, and shall, except as herein otherwise provided, be founded on sealed bids or proposals made in accordance with public notice duly advertised in the 1 City Record ’ and the corporation newspapers, said notice to he published at least ten days; if the head of a department shall not deem it for the interests of the city to reject all bids, he shall, without the consent or approval of any other department or officer of the city government, award the contract to the lowest bidder, unless the board of public improvements by a vote of a majority of its members, of whom the mayor and the comptroller shall be two, shall determine that it is for the public interest that a hid other than the lowest should be accepted.”
It cannot be doubted but that these provisions of the charter provide a complete scheme for lighting the public streets and buildings, and for the procuring by the city of the necessary gas, electricity or other illuminants for that purpose. The commissioner who is to have cognizance and control of the making and performance of contracts for that purpose was designated, and his duty as to such contracts was prescribed by section 587. The number, kind and location of the lights to be furnished under each of said contracts were to be determined and prescribed by the commissioner. Bids were to be prepared and advertised for and contracts executed in the manner prescribed in the charter with regard to other contracts entered into by the city or the departments thereof; and such contracts were to be made for one year and were to be awarded to the lowest bidder. Nothing could be more specific, and it is difficult to see how the Legislature could have more clearly indicated its intention to require contracts for the furnishing of gas and electricity, or other illuminants, to be furnished under general contracts of this kind to run for one year, and to be let to the lowest bidder, after public advertisement for bids; and to restrict the power of the commissioner to make such contracts in any other manner than that prescribed by the charter. It seems to me that it was intended that the contract should provide that the contracting party should furnish to the city the light required by the city and fix the price that it was to pay. 'Undoubtedly the commissioner could, during the year, change the number of lights to be supplied by the contracting *35party, and the contract could be so arranged that the contracting party would be bound to furnish all lights required under the contract. What seems to me to be the clear intention of the Legislature is that these contracts for public lighting should extend over a whole borough, or to such other territorial extent as the board of public improvements should provide; and that within such territory all lights to be furnished should be furnished by the contractor whose bid was accepted under the provisions of this section and that those contracts should be made for one year. W e have thus a complete and consistent scheme for procuring a contractor who will undertake to furnish to the city the necessary light for its public streets, places and buildings; and the commissioner has no authority to enter into any contracts except such as are authorized by this express provision of the charter.
Look for a moment at the effect of any other construction. Any officer holding this position of commissioner of buildings, lighting and supplies, by simply making daily or monthly contracts could evade all the provisions of this statute and pay to those he pleases the prices he pleases for the services to be rendered to the city; and yet it is perfectly clear that it was the intention of the charter that such contracts should not be made, except when based upon bids submitted in consequence of public advertisement. These carefully drawn provisions of the charter are evidently intended for the protection of the city, to prevent the making of private contracts. The proper officers are authorized to make contracts, but the methods are prescribed by which they shall be made ; and clearly, it seems to me, the authority of the officials to make a contract is limited to such contracts as should be made in the manner prescribed by the charter. To hold that these express and detailed provisions for regulating the action of the commissioner are inapplicable, if the commissioner sees fit to make a contract for a less period than a year, or if he neglects to make a contract as authorized so that in order to have the streets lighted he is required to make private contracts, would give him authority to pay the prices that he pleased and upon the terms that he was pleased to impose, and would be to abrogate this carefully conceived and complete scheme for making contracts for lighting, and frustrate the evident intent of the Legislature. That the commissioner had the power to make this contract *36without the approval of the municipal assembly has been determined by this court in the second department in the case of Blank v. Kearny (44 App. Div. 592); and the mere fact that he neglected to make such a contract until it was too late to advertise for bids would, in my view, give him no right to make other contracts without complying with the provision of the charter. 1 have no doubt of the justice of this claim and that these plaintiffs, by coming to the aid of the city and furnishing this light, performed a commendable public service, which would justify the Legislature in making provision fur the payment of the amount of this claim; but without expressly abrogating this provision of the. charter, I do not think we can give the plaintiffs a judgment against the city.
There should, therefore, be judgment for the defendant, with costs.