Cases

DETERMINED IN THE

FOURTH DEPARTMENT

IN THE

APPELLATE DIVISION,

Duly, 1898.*

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 Erie 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 was 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

* The other cases of this term will be found in volume 32 App. Div.-[REP. APP. DIV.- VOL. XXXIII.

1

33

FOURTH DEPARTMENT, JULY TERM, 1898.

[Vol. 33. 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 the 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 6th 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 Commercial, and also from Charles H. Webster, the publisher of another paper, known as the Daily Mercantile Review.

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 committee 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.: