People ex rel. Sage v. Schuyler

While 1 agree with much of the opinion of my brother Board-man, there is one important respect as to which I must disagree, and that is on the question of ratification by the act of 1875. The very ground of any ratification (by the Legislature or by any other party) must be Icnowledge.

*109the action in the auditor’s office does not sbow knowledge in the Legislature. And especially it is not proved that the Legislature had knowledge of the illegality of these contracts. (People ex rel. Wasson v. Schuyler, 69 N. Y., 242.) If the language of the act expressly included the certificates the case would be quite different. But it does not. And therefore, when the act is claimed to be a ratification only, it should appear plainly that the Legislature, with knowledge of the circumstances respecting these certificates, must have intended by this appropriation in general language to ratify them. I do not think that such knowledge is shown, and I am of the opinion, therefore, that the judgment on the referee’s report should be reversed, with costs.

dissenting.

It may be assumed that the original contract made for the building of this dam in December, 1872, was not valid or binding upon the State. the fourteenth finding of fact by the learned referee, however, gives some color to the claim that such contract was recognized and ratified so far as possible by the canal board in February, 1873, while the work was in progress. the conclusion reached makes it unnecessary to discuss that question.

By the act of 1875, chapter 263, appropriations were made to pay awards of the canal board, the board of canal commissioners, and certificates for work done on the Erie canal as well as interest upon such sums., the evidence shows that the certificates in controversy were included in the estimates for which such appropriations were made. the facts were known to the canal board and the canal commissioners. the necessity for the work for State purposes bad been recognized by the canal board in 1873, and in 1872 by the report to the Legislature of the canal commissioner in charge. Again, in 1874 the amount of these certificates was reported to the Legislature of 1875 as items of public expenditure. the law of 1875 was thereupon drawn up for the auditor for the very purpose, among others, of paying these certificates. In the face of these facts, it cannot be contended there was not a legislative ratification of these expenditures and a recognition of *110the State’s obligation, to pay them. (Smith v. People, 47 N. Y., 330; People v. Lord; People v. Stephens; People v. Leahy, MSS. opinions, Ct. of App.) Nor is it open to clonbt that the Legislature have the power so to ratify, recognize and pay for work of which the State has had the use and benefit. (People v. Lord, Ct. of App., Jan., 1878; 17 Alb. L. J., 273; People v. Stephens, 51 How., 235; People ex rel Williams v. Dayton, 55 N. Y., 367; Brown v. Mayor of N. Y., 63 id., 239; Nelson v. Mayor, etc. of N. Y. id., 535.)

Was the act of 1875 repealed by the act of 1876, chapter 425 ? It is certainly not repealed in terms, and repeals by implication are not favored. If the two statutes can both stand without being-inconsistent or in conflict, courts will sustain both. (People ex rel. Kingsland v. Palmer, 52 N. Y., 83.) The object of the act of 1876 was ‘ ‘ to provide for the completion or cancellation of all pending contracts for new work upon, and extraordinary repairs of, the canals ” and making appropriations therefor. The contract before us was not a “pending contract,” and therefore did not come within the purpose of the law. The act of 1875 was not passed to pay for new work or extraordinary repairs, but to pay for work already done and completed. Any other construction would involve extraordinary and improbable consequences. There is nothing in the provisions of the act of 1876 in conflict with the view here taken. If it be conceded that the work done was necessary for the profitable use of the Erie canal, and that the right to withhold payment aiises from irregularities in the manner of making the contract and causing the work to be done, then an equitable, .if not legal, obligation was imposed upon the State to pay for such work, of which, since 1874, it has had the use and benefit. This constitutes a sufficient consideration, not only to justify, but to require a recognition and payment of the debt.

Nothing is seen in the exceptions taken upon the trial which ought in our judgment to change the result or furnish a reason for granting a new trial. There is no evidence that the work was not well doné. It appears that the State officers have acted in good faith, and with reference to the best interests of the State as they believed. The price to be paid for the work is reasonable and the work was necessary. There is no pretence of any fraud *111or corruption. The State has since used and enjoyed the benefits of the work.

For the reasons assigned, and for others more clearly and fully stated in the opinion of the learned referee, I dissent from the opinion of my brethren, and think this judgment should be affirmed, with costs.

Judgment reversed, with costs, against the relator.